author: BUTZNER, Circuit Judge:

text:
    Luther G. SCOTT, Jr., Appellee, v. Harold VANDIVER, Sheriff of Abbeville County, South Carolina, and George M. McMahan, Supervisor of Abbeville County, South Carolina, Appellants. Luther G. SCOTT, Jr., Appellee, v. Ray McMAHAN, Appellant.
    Nos. 72-1760, 72-1761.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 5, 1972.
    Decided March 16, 1973.

      Joseph E. Major, Greenville, S. C. (J. D. Todd, Jr., Greenville, S. C., and William P. Greene, Jr., Abbeville, S. C., on brief), for Harold Vandiver and George McMahan.
    C. Rauch Wise, Greenville, S. C., for Ray McMahan.
    Karl L. Kenyon and G. Ross Anderson, Jr., Anderson, S. C., for Luther G. Scott, Jr.
    Before HAYNSWORTH, Chief Judge, and BUTZNER and RUSSELL, Circuit Judges.
   BUTZNER, Circuit Judge:

Harold W. Vandiver, George Mc-Mahan, and Ray McMahan appeal from a judgment holding them liable under 42 U.S.C. § 1983 (1970) for an assault against Luther G. Scott, Jr. They assert that the district court should have required Scott to exhaust available state judicial remedies before proceeding under § 1983; that the trial judge made erroneous findings of fact and conclusions of law; that they were not acting “under color of” state law; that neither Harold W. Vandiver, the county sheriff, nor George McMahan, the county supervisor, was responsible for the acts of James Hunter and Ray McMahan; and that the damages awarded by the district court were excessive. We affirm on all issues except the judgment against supervisor George McMahan.

The defendant’s threshold contention that the district court should have required Scott to exhaust state remedies is without merit. A § 1983 claimant does not have to exhaust state judicial remedies before pursuing his federal cause of action. Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

I

Although the evidence conflicted on many points, there was ample testimony to support the trial judge’s acceptance of the following version of the facts, and we are bound by his findings under Rule 52 of the Federal Rules of Civil Procedure. On July 23, 1970, the Calhoun Falls police reported to Sheriff Vandiver that a woman had been shot within his jurisdiction. Before going to the house where the shooting occurred, the sheriff drove to the county farm to pick up some bloodhounds. While there, he requested two county employees, James Hunter and Ray McMahan, to assist him in his investigation. Hunter and Mc-Mahan got in McMahan’s truck and followed the sheriff’s vehicles.

Not far from the scene of the reported shooting, Scott was walking along the side of the road, going from his home to his brother’s home. Scott did not resemble the person suspected of the crime, but when Hunter and McMahan saw him, they stopped and told him to get in the truck with them to go to the sheriff. They did not identify themselves or explain the authority for their orders. While the two men were talking to him, Scott saw a gun on the seat of the truck and immediately began to run. Hunter and McMahan both jumped out of the truck to chase him, and Hunter fired his gun in Scott’s direction.

As Scott fled, he fell and severely injured his shoulder, but he regained his feet and reached his brother’s house. His brother came out of the house armed with a shotgun and asked the men why they were shooting at Scott. Without explanation, the men returned to the truck and sped off towards the house where the sheriff was investigating the crime they had erroneously suspected Scott of committing. They told the sheriff of their encounter with Scott, and he, realizing that Scott was not a suspect, sent one of his deputies to find out what had happened.

The evidence justifies the district court’s finding that Ray McMahan was a joint participant with Hunter. Likewise, it supports the finding that Hunter and Ray McMahan used “excessive force and oppression in the attempted unlawful apprehension and arrest of [Scott].” The. record negates the common law defenses of good faith and probable cause, which under other circumstances may be available in § 1983 actions. See Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Hill v. Rowland, 474 F.2d 1374 (4th Cir. 1973).

II

The defendants contend that Scott is not entitled to recover under § 1983 because Hunter and Ray McMahan were not acting “under color of” law when they assaulted Scott. Hunter insisted that he was exercising his right as a citizen when he discharged his pistol and gave chase to Scott.

With respect to this issue, the evidence supported the district court’s findings: the supervisor and sheriff had a long-standing agreement that county employees would assist the sheriff if he made a request through proper channels; Ray McMahan had previously assisted the sheriff on manhunts; the sheriff told Scott’s relatives that Hunter and Ray McMahan were assisting him in response to his request; and neither McMahan nor Hunter was disciplined for the assault.

English common law, which remains the law of South Carolina unless changed by statute, authorized a sheriff to summon bystanders to assist him in apprehending felons. 1 Blackstone, Commentaries* 343; see also Sutton v. Allison, 47 N.C. 339, 341 (1855). The sheriff’s authority is implicitly recognized in S.C.Code Ann. § 53-199 (1962), which empowers a deputy sheriff to call out a posse comitatus to assist in arresting suspected violators of the law. It is apparent that this statute supplements, rather than supersedes, the common law. To hold otherwise would irrationally confer on a deputy sheriff powers greater than the sheriff’s.

The trial court’s findings and South Carolina law support the conclusion that Hunter and Ray McMahan were temporary state law enforcement officers when they assaulted Scott. Their status brings them squarely within § 1983. Borrowing from cases construing a related criminal statute, the Supreme Court has ruled that the phrase “under color of” state law embraces “[m]isuse of power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law . . . Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961). Monroe held that the victim of police misconduct had a § 1983 claim against the police who violated his federally secured rights. Other federal courts have followed Monroe’s interpretation of § 1983 by awarding compensation to the victims of unlawful police assaults.

It is immaterial whether the status of Hunter and Ray McMahan was created directly by the state’s posse comitatus law or whether it arose out of the sheriff’s custom of enlisting county employees to assist in manhunts. A custom may support a § 1983 claim if it has “the force of law.” Adiekes v. Kress & Co., 398 U.S. 144, 162, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Here the sheriff’s common law powers to summon bystanders infused his custom of using county employees in manhunts with the force of law.

Ill

Sheriff Vandiver asserts that he is not responsible for the assault committed by Hunter and Ray McMahan because the doctrine of respondeat superior should not be applied to actions brought under § 1983. We need not, however, examine the applicability of the doctrine because it is not essential to the sheriff’s liability. As shown in Part II, the sheriff acted under color of South Carolina law when he requested Hunter and Ray McMahan to assist him in the manhunt, and they in turn acted under color of state law when they assaulted Scott. It is appropriate, therefore, to look to South Carolina law to ascertain the sheriff's responsibility for the actions of his subordinates. 42 U. S.C. § 1988 (1970). The Court of Appeals for the Sixth Circuit recently relied on state law to sustain an award of punitive damages against a Tennessee sheriff for an assault committed by his deputy. McDaniel v. Carroll, 457 F.2d 968, 969 (6th Cir. 1972); accord Hesselgesser v. Reilly, 440 F.2d 901 (9th Cir. 1971) (compensatory damages); Lewis v. Brautigam, 227 F.2d 124 (5th Cir. 1955) (compensatory damages). Other examples of the extension of state law to § 1983 actions are familiar: federal courts apply state statutes of limitations to § 1983 claims, O’Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914), Almond v. Kent, 459 F.2d 200, 203 (4th Cir. 1972); state law insures the survival of a § 1983 cause of action, Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); a federal court may resort to the state law of torts to supply the elements of the § 1983 claim, Jenkins v. Averett, 424 F.2d 1228, 1231 (4th Cir. 1970); and defenses recognized by state common law may be raised to contest a § 1983 claim, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Moreover, state law is available to a § 1983 claimant under the doctrine of pendant jurisdiction without the necessity of showing diversity of citizenship. Jenkins v. Averett, 424 F.2d 1228, 1231 (4th Cir. 1970); Whirl v. Kern, 407 F.2d 781, 793 (5th Cir. 1969).

The Supreme Court of South Carolina has expressly ruled that a sheriff’s responsibility for the acts of his deputy is not dependent on the doctrine of respondeat superior. Instead, liability is based on the deputy’s position as the sheriff’s representative for whose official acts the law holds the sheriff strictly accountable. Rutledge v. Small, 192 S.C. 254, 6 S.E.2d 260, 262 (1939). The sheriff’s liability is clearly defined in Teasdale v. Hart, 2 Bay 173, 175 (S. C.1798):

“Every sheriff [is] liable for the acts of all his officers, and all persons acting under him in every subordinate capacity; and they on their parts, are bound to conduct themselves in the like manner as the sheriff himself ought to do, if he was present; and he is not to be let off, on account of the blunders, misconduct, or errors of any of his inferior agents.”

This rule, promulgated in accordance with the common law almost two centuries ago, has not been impaired by the passage of time. On the contrary, it has been reaffirmed, Rutledge v. Small, 192 S.C. 254, 6 S.E.2d 260, 262 (1939), and codified with respect to deputies and special deputies, S.C.Code Ann. §§ 53-71, -83 (1962). It is broad enough to include Hunter and Ray McMahan, who, as temporary law enforcement officers, acted under the sheriff in a subordinate capacity.

Assault by a sheriff’s deputy in the performance of his duties is among the specific acts for which a sheriff is liable. Rutledge v. Small, 192 S.C. 254, 6 S.E.2d 260, 261 (1939) (dictum). Because this is the wrong that Hunter and Ray McMahan committed, the district court properly held the sheriff liable.

IV

Supervisor George McMahan stands on a different footing. The proof does not show that he was responsible for the conduct of Hunter and Ray McMahan at the time they assaulted Scott. As county supervisor, he was normally the person for whom they worked. However, Sheriff Vandiver had assumed supervision of the men, and they were no longer performing tasks within the ordinary scope of their jobs as heavy equipment operator and truck driver for the county while they were on the manhunt.

The trial court’s finding that the supervisor and sheriff had agreed that county employees could assist the sheriff does not impose liability on the supervisor. The agreement did not provide that the supervisor would exercise control over the employees or retain responsibility for their acts while they were in the service of the sheriff. The sheriff alone was in charge of the men at the time of the assault, and under no theory can Supervisor McMahan be held liable.

V

Finally, the defendants contend that excessive damages were awarded. Ascertainment of damages arising from personal injuries involves questions that are essentially factual, and an award by a district judge will not be upset unless it is clearly erroneous. Fed.R.Civ.P. 52(a); Neal v. Saga Shipping Co., 407 F.2d 481, 487 (5th Cir. 1969); Lukmanis v. United States, 208 F.2d 260, 261 (2d Cir. 1953). We have reviewed the evidence concerning damages and conclude that the trial judge’s award of $22,993.44 was not excessive. See McClure v. Price, 300 F.2d 538, 545 (4th Cir. 1962).

Accordingly, the judgment of the district court against Harold W. Vandiver and Ray McMahan is affirmed, and Scott shall recover his costs. The judgment against George McMahan is reversed, and he shall recover his costs against Scott.

      . James Hunter, a fourth defendant, did not file any responsive pleading to Scott’s complaint, but lie testified as a witness for the defendants. The district court entered a default judgment against him from which lie did not appeal.

      . 42 U.S.C. § 1983 (1970) provides:
      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

      . Apparently no crime was pver committed. The sheriff testified that following his investigation he concluded that the woman had shot herself.

      . State v. Charleston Bridge Co., 113 S.C. 116, 101 S.E. 657, 660 (1919).

      . S.C.Code § 53-199 (1962) provides:

        “May call out posse comitatus ; penalty for refusing to assist. — Any sheriff, deputy sheriff, constable or other officer specially empowered may call out the bystanders or posse comitatus of the proper county to his assistance whenever he is resisted or has reasonable grounds to suspect and believe that such assistance will be necessary in the service or execution of process in any criminal case and any deputy sheriff may call out such posse comitatus to assist in enforcing the laws and in arresting violators or suspected violators thereof. Any person refusing to assist as one of the posse comitatus in the service or execution of such process, when required by the sheriff, deputy sheriff, constable or other officer shall be liable to be indicted therefor and upon conviction shall be fined and imprisoned, at the discretion of the court and any person who shall fail to respond and render assistance when summoned by a deputy sheriff to assist in enforcing the laws and in arresting violators or suspected violators thereof shall be guilty of a misdemeanor and, upon conviction shall be fined not less than thirty nor more than one hundred dollars or imprisoned for thirty days.”

      . Williams v. United States, 341 U.S. 97, 99, 71 S.Ct. 576, 95 L.Ed. 774 (1951); Screws v. United States, 325 U.S. 91, 112, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941).

      . Jenkins v. Averett, 424 F.2d 1228, (4th Cir. 1970); Collum v. Butler, 421 F.2d 1257 (7th Cir. 1970); Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963); Jackson v. Duke, 259 F.2d 3 (5th Cir. 1958). Cf. York v. Story, 324 F.2d 450 (9th Cir. 1963).

      . In view of our conclusion that the status of Hunter and Bay McMahan, as temporary state law enforcement officers, subjects them to liability under § 1983, we need not consider the alternative theory that they subjected themselves to liability by willfully participating in the manhunt with the sheriff. Cf. United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966).

      . Compare Hill v. Toll, 320 F.Supp. 185 (E.D.Pa.1970) (doctrine of respondeat superior applied to § 1983 claim) with Sanberg v. Daley, 306 F.Supp. 277 (N.D. Ill.1969) (doctrine held inapplicable). Cf. Flemming v. South Carolina Electric & Gas Co., 224 F.2d 752, 753 (4th Cir. 1955) (bus driver’s corporate employer held liable without discussion of the doctrine).

      . 42 U.S.C. § 1988 (1970) provides:
      “The jurisdiction in civil matters conferred on the district courts by the provisions of this chapter . . . shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all oases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies . . . , the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction ... is held, so far as the .same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause . . . .”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James R. DORSEY, Appellant, v. CHESAPEAKE AND OHIO RAILWAY COMPANY, a corporation, et al., Appellees.
    No. 72-1324.
    United States Court of Appeals, Fourth Circuit.
    Submitted Feb. 23, 1973.
    Decided April 5, 1973.

      Thornhill, Kennedy & Vaughan, Beckley, W. Va., and Jo B. Gardner, Monett, Mo., on brief, for appellant.
    William C. Beatty, Huntington, W. Va., and Richard J. Bolen, Huntington, W. Va., on brief for appellees.
    Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and WIDENER, Circuit Judge.
   PER CURIAM.

James R. Dorsey appeals from an order of the district court granting defendants’ motion for summary judgment. Defendant railroad discharged him as a conductor on November 13, 1969 after a company Board of Inquiry found that he had violated a rule prohibiting the use of intoxicants by employees while on company property.

In his complaint, Dorsey claimed that his discharge violated the terms of his employment contract and deprived him of his employment and property without due process of law; that defendant railroad and the other named defendants conspired to so discharge him; and that such action was done with malice. Contending that his case was a wrongful discharge cause of action within the rule of Moore v. Illinois Central R. R., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089 (1941), Dorsey instituted this action in the district court without exhausting his remedies before the National Railroad Adjustment Board (NRAB). After this action was brought, the Supreme Court expressly overruled Moore and held in Andrews v. Louisville & Nashville R. R., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972), that any railroad employee alleging a violation of the collective bargaining agreement must follow the administrative procedures set forth in the Railway Labor Act, 45 U.S.C. § 151 et seq.

Dorsey acknowledges that Andrews requires exhaustion of administrative remedies in cases alleging only a common law breach of contract but contends that Andrews left undecided the question whether a wrongful discharge complaint alleging a constitutional violation should be exempted from the exhaustion requirement. Dorsey states that the Board of Inquiry which investigated his ease denied him due process in several respects; specifically, he alleges that the Board conducted an improper investigation of the charge against him, held preliminary unrecorded meetings in violation of a contract provision requiring a complete record of all the evidence, and denied him the right to have a representative and to face his accusers. All of these alleged due process violations occurred during the initial hearing by the employer on railroad property. At this stage, “The dispute is between private parties and the applicable procedure for settling the dispute is governed by the contract between them.” Edwards v. St. Louis-San Francisco R. R., 361 F.2d 946, 954 (7th Cir. 1966). “The federal courts are not the guarantor of any rights of either labor or management at the initial hearing, either by force of the Constitution or Railway Labor Act . . . . ” Edwards at p. 954. See Otto v. Houston Belt & Terminal Ry., 319 F.Supp. 262 (S.D.Texas 1970). We conclude that Andrews is controlling and that the district court properly found that Dorsey was required to exhaust his remedies with the NRAB before bringing suit in federal court.

In Andrews, the court said: “A party who has litigated an issue before the Adjustment Board on the merits may not relitigate that issue in an independent judicial proceeding. Union Pacific Ry. Co. v. Price, 360 U.S. 601 [79 S.Ct. 1351, 3 L.Ed.2d 1460] (1959).” 406 U.S. at 325, 92 S.Ct. at 1565. Since the dispute in this case was taken to the NRAB, we believe that the Railway Company could have properly defended the instant action on the grounds that an award of the NRAB would be final and could not be collaterally attacked because of 45 U.S.C. § 153, First (m), in an independent proceeding. Andrews, supra. Such an award could be judicially reviewed only under § 153 First (q), as mentioned in footnote 1.

In the court below, and on appeal, appellant contended that defendants Frost, Sims, Epperly and Heslep conspired with the defendant Railway Company to cause his dismissal. Dorsey never sought relief from the defendants in their capacity as private individuals who interfered with his employment with the railroad, other than in the context of a conspiracy to discharge him, the merits of which is in the exclusive jurisdiction of the NRAB. Since a corporation can act only through its agents, the effect of Dorsey’s charge of conspiracy between the defendant Railway Company and its agents was to charge a conspiracy by a single party. Pearson v. Youngstown Sheet and Tube Co., 332 F.2d 439 (7th Cir. 1964), cert. den. 379 U.S. 914, 85 S.Ct. 262, 13 L.Ed.2d 185 (1964). Therefore, the district court properly dismissed Dorsey’s conspiracy claim.

Accordingly, we dispense with oral argument and affirm the judgment of the district court.

Affirmed.

      . Wo note that before the district court entered its order the railroad submitted Dorsey’s discharge claim to the NRAB pursuant to 45 U.S.C. § 153 First (i). On November 2, 1972, the NRAB decided that Dorsey was guilty of the violation charged but that the penalty imposed was excessive. The NRAB ordered that Dorsey be reinstated to his position witli full seniority rights and that he receive payment of any wages lost more than one year after the date of discharge. Dorsey may seek judicial review of the NRAB’s decision pursuant to 45 U.S.C. § 153 First (q).

      . The instant dispute was taken to -the NRAB by the defendant Railway Company. (Appellant’s brief p. 8). We are of opinion that this fact has no effect on the operation of 45 U.S.C. § 153 First (m), since § 153 First (i) allows either party to submit the dispute to the NRAB. See Andrews, supra ; Brotherhood of Rail. Train, v. New York Cent. Ry. Co., 246 F.2d 114, 118 (6th Cir. 1957), cert. den. 355 U.S. 877, 78 S.Ct. 140, 2 L.Ed.2d 107 (1957).


author: GOLDBERG, Circuit Judge:

text:
    J. R. DAVIS (Estate of J. R. Davis in substitute for and stead of J. R. Davis, Deceased), Plaintiff-Appellant, v. W. BRUNS & COMPANY, Defendant-Third Party Plaintiff-Appellee, SEALAND TERMINAL CORPORATION, Third Party Defendant. James W. JONES, Plaintiff-Appellant, v. FRUCHTREEDEREI HARALD, SCHULDT & CO., Defendant-Appellee.
    Nos. 72-2999, 72-3474
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 27, 1973.
    Robert O. Homes, Jr., Bruce C. Waltzer, George F. Riess, New Orleans, La., for J. R. Davis.
    Michael K. Clann, Ronald A. Johnson, J. Barbee Winston, New Orleans, La., for W. Bruns & Co.
    Robert O. Homes, Jr., Bruce C. Waltzer, New Orleans, La., for James W. Jones.
    Ronald A. Johnson, J. Barbee Winston, Terriberry, Carroll, Yancey & Farrell, New Orleans, La., for Fruchtreederei Harald, Schuldt & Co.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, 5 Cir. 1970, 431 F.2d 409, Part I.

   GOLDBERG, Circuit Judge:

This is a consolidated appeal from the dismissals by summary judgment of two admiralty actions on the ground that federal jurisdiction was lacking in both cases. The parties have stipulated that the operative facts in the two cases are so nearly identical that the appeals may be disposed of together on common briefs. Those facts are not seriously disputed, and the courts below found that the “locality rule” of admiralty law barred the action, i. e., that federal maritime jurisdiction does not reach a longshoreman who was injured while working on a pier unloading bananas where the injury resulted from a defect in or negligent operation of shore-based equipment only temporarily and tenuously “attached” to the ship. Guided by the beacon light of recent Supreme Court pronouncements in this area of the law, we agree that federal jurisdiction is wanting and we affirm.

The facts in Jones v. Fruchtreederei Harald, Schuldt & Co. D.C., 347 F.Supp. 853, were found by the trial judge to be as follows:

“[A]t the time of the accident, Jones was employed as a longshoreman by a stevedore, Sea-Land Terminal Corporation, at the Port of Gulf-port, Mississippi. The banana unloading facility, which is owned by the port authority, consists of a number of gantries and a series of conveyor belts. The conveyor belts are moved on rollers affixed beneath them.
“To unload bananas from a ship, gentries are placed in the holds of the ship and used to lift banana boxes onto a conveyor belt. The boxes then travel along a series of three or four conveyor belts into areas called pier fingers, where they are ultimately loaded into trucks or railroad cars. Control switches, capable of starting or stopping the conveyor belts, are located both on the gantries in the holds and at the pier fingers. On the pier fingers and alongside the conveyor belts there are ‘stands,’ on which certain longshoremen are stationed. They are assigned to turn banana boxes from the conveyor belts onto a set of rollers over which the boxes moved immediately into the awaiting vehicles. This was Jones’ duty when he was injured.
“Some of the banana boxes became jammed on the conveyor belt. The belt was stopped by one of the control switchmen on the pier acting on orders from Young, Jones’ immediate supervisor. Jones’ arm became entangled in the rollers under the belt. When the boxes were freed, the pier switchman, again on orders of Young, who did not know that Jones’ arm had been caught between the rollers in the interim, started the conveyor belts, causing severe injuries to his arm.”

E.D.La.1972, 347 F.Supp. 853, 854.

The facts in cause no. 72-2999, Davis v. W. Bruns & Co., are very similar. Davis was also employed by the Sea-Land Terminal Corporation, and at the time of his injury Davis was working at the very same banana-unloading facility. The manner in which his injury occurred, however, was somewhat different — Davis was injured when he was struck by boxes of bananas that fell from the conveyor belts.

One particularly unusual aspect of this appeal is that throughout this litigation the opposing parties have relied upon precisely the same authority to support their antipodal conclusions regarding the existence of federal maritime jurisdiction. In Victory Carriers, Inc. v. Law, 1971, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383, noted in 50 Texas L.Rev. 1428 (1972), 47 Tulane L.Rev. 183 (1972), the Supreme Court held that federal admiralty jurisdiction does not extend to pier-side accidents caused by a stevedore’s pier-based equipment. In so holding, the Court stated,

“[T]he amphibious nature of the longshoreman’s occupation creates frequent taxonomic problems. In the present case, however, the typical elements of a maritime cause of action are particularly attenuated: respondent Law was not injured by equipment that was part of the ship’s usual gear or that was stored on board, the equipment that injured him was in no way attached to the ship, the [equipment that injured him] was not under the control of the ship or its crew, and the accident did not occur aboard ship or on the gangplank.”

402 U.S. at 213-214, 92 S.Ct. at 426, 30 L.Ed.2d at 392. Appellants cite this language as approving a finding of federal jurisdiction on the facts before us; appellees urge that this language forecloses a finding of federal jurisdiction. The courts below agreed with appellees and therefore dismissed the actions.

Appellants’ basic argument is that Victory Carriers, Inc. v. Law, supra, supports federal admiralty jurisdiction whenever any one of the four “typical elements of a maritime cause of action” are found to exist and that here appellants can show the existence of two of these elements. See, e. g., Gutierrez v. Waterman S. S. Corp., 1963, 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (injury caused by ship’s equipment, i. e., defective cargo containers); Alaska S. S. Co. v. Petterson, 1954, 347 U.S. 396, 74 S.Ct 601, 98 L.Ed. 798 (injury aboard ship); Seas Shipping Co. v. Sieracki, 1945, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (injury aboard ship due to defective equipment belonging to ship). Cf. Chagois v. Lykes Bros. S. S. Co., 5 Cir. 1972, 457 F.2d 343 (no maritime jurisdiction where none of the four elements are present). We need not and do not determine which of the factors discussed by the Supreme Court in Victory Carriers, Inc. v. Law, supra, are necessary or sufficient to give a longshoreman a maritime cause of action because we find that none of the factors are present here. Thus, we hold only that federal maritime jurisdiction does not reach a longshoreman injured on the land by shore-based equipment when none of the elements relevant to the locality rule of Victory Carriers, Inc. v. Law are present. See Wagner v. Delta S. S. Lines, Inc., 5 Cir. 1972, 465 F.2d 387; Chagois v. Lykes Bros. S. S. Co., supra.

The first “element” that appellants insist is present is “attachment” to the ship of the equipment that caused the injury. This conclusion rests on appellants’ assertion that “the banana handling facility was attached to the vessel by two lines running from the end of the facility to eyebolts on the floor of the vessel.” Appellees argue that no attachment whatsoever was present, but even assuming that the two guy wires connected the entire unloading facility to the ship, we are unwilling to say that the sort of attachment contemplated by Victory Carriers, Inc. v. Law is present. We think that the Supreme Court obviously intended “attachment” to mean something more than the temporary affixing of steadying wires. ' The facility here was permanently affixed to the shore, it was not an appurtenance of the ship, and it was never disconnected from the shore.

Nor is appellants’ argument that a second “element” is present persuasive. Appellants argue that because an electric on-off switch was located on the marine leg of the gantry in the hold of the vessel, the facility was “under the control of the ship or its crew.” Again, we are compelled to disagree. The belts here were in every meaningful sense of the word “controlled” only from the shore. Although one switch was indeed aboard the vessel, the control that switch could have exercised over the facility was never utilized, it had no possible connection with the injury under all the allegations, and it remained but a mere potential for control.

The rest of appellants’ arguments are fully answered by Judge Rubin’s well-reasoned opinion below, 347 F.Supp. 853, and we affirm both cases on the basis of that opinion. As the Supreme Court held in Victory Carriers, Inc. v. Law, supra, 404 U.S. at 204, 92 S.Ct. at 420, 30 L.Ed.2d 386-387:

“[T]he threshold issue is whether maritime law governs accidents suffered by a longshoreman who is injured on the dock by allegedly defective equipment owned and operated by his stevedore employer. We hold that under the controlling precedents, federal maritime jurisdiction does not govern this accident. Nor, in the absence of congressional guidance, are we now inclined to depart from prior law and extend the reach of federal law to pier-side accidents caused by a stevedore’s pier-based equipment.”

The waters on which pier-side injury actions are required to sail were once troubled and stormy. Indeed, the writer of this opinion originally thought, when writing this Circuit’s decision in Victory Carriers, Inc. v. Law, 5 Cir. 1970, 432 F.2d 376, reversed, 1971, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383, that the federal maritime jurisdiction would reach pier-side injuries such as those now before us. The Supreme Court disagreed and declared that view to be off-course, and it cannot be repeated too often that the Supreme Court’s decisional pronouncements constitute the law of the land.

The Supreme Court’s holding in Victory Carriers, Inc. v. Law spread a pacifying oil that put to rest the argument that the locality of the injury is to be given less than nearly controlling weight. That case must now serve as our compass and our sextant, and its navigational guidance as to the cases before us is clear: Absent any of the enumerated elements that would convert it into a maritime cause of action, the on-land location of the accidents erects a blockade against maritime jurisdiction. Appellants would have us return to our holding in Victory Carriers, Inc. v. Law, but our decision there was surveyed from above, and the metes and bounds of similar equipment were found to be landward of maritimé jurisdiction, which corrected the error of our prior judicial transit. Federal admiralty jurisdiction does not extend to pier-side accidents caused by a stevedore’s pier-based equipment, and appellants must seek shelter in some port other than that established by the maritime jurisdiction.

Affirmed.

      . Appellees insist that there is no physical connection between the banana handling facility and the ship other than a single line that extends from the gantry to a pad eye in the bottom of the vessel. None of the conveyor belts are admitted to be attached to the ship or the maritime portion of the facility; rather, appellees state that there is an open space of approximately three feet between the maritime portion of the facility and the belts that actually injured appellants. The cargo is said to be elevated from the holds and then ejected across this open space. Appellees thus urge that the conveyor belts themselves are entirely affixed to the land and in no way actually attached to the vessel.

      . In addition to tracing the troubled and sometimes conflicting development of the case law prior to Victory Carriers, Note, 50 Texas L.Rev. 1428 (1972), compiles various arguments “in defense of the locality rule as applied in Victory Carriers."


author: SPRECHER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Claude JACKSON, Defendant-Appellant.
    No. 72-1572.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 10, 1973.
    Decided March 13, 1973.

      Frederick H. Miller, Madison, Wis., for defendant-appellant.
    John O. Olson, U. S. Atty., James M. Bablitch, Asst. U. S. Atty., Madison, Wis., for plaintiff-appellee.
    Before PELL, STEVENS and SPRECHER, Circuit Judges.
   SPRECHER, Circuit Judge.

The principal issue raised by this appeal is whether a prosecutor may comment on a marked change in the defendant’s physical appearance shortly prior to his prospective identification by eyewitnesses.

Defendant Claude Jackson was convicted after a jury trial of transporting in interstate commerce a person who had been kidnapped and held as a hostage in violation of 18 U.S.C. § 1201. He was sentenced to five years, to become eligible for parole at such time as the Board of Parole may determine.

In the evening of April 15, 1971, two persons entered the lobby of the Albert Pick Motel in Rockford, Illinois, herded several employees into the office, and at gunpoint took several thousand dollars from the motel safe. They drove their automobile a short distance and abandoned it. After running around a parking lot trying to get into another car, they encountered John G. Hooley, an insurance underwriter, on his way from his home to his office to complete his income tax return. They forced Hooley at gunpoint to drive them to Madison, Wisconsin, where they pushed him out of his automobile. The two persons then drove off in Hooley’s car.

Defendant was arrested in Atlanta, Georgia, on September 17, 1971, and after a removal hearing was returned to the Western District of Wisconsin on October 26, 1971.

I

Defendant contended that the trial court erred in receiving plaintiff’s exhibit 18, a blow-up of two fingerprints —one of the defendant and the other taken from Hooley’s brief case, which, stuffed with his income tax data, was lying in the back seat of his car when the person identified by him as the defendant climbed in the back seat in Rockford and nervously fingered the case during the trip to Madison.

The foundation laid by the prosecution for the introduction of the exhibit was extensive. First, Charles O. Eastman, a deputy United States Marshal, testified that he took defendant’s fingerprints on October 26, 1971, when defendant arrived back in Wisconsin. He identified plaintiff’s exhibit 15 as the fingerprint card containing a full set of defendant’s fingerprints.

Second, Dexter Haney, an employee of the Wisconsin State Crime Laboratory, testified that on December 17, 1971, he photographed a single fingerprint from exhibit 15, enlarged the photograph and mounted it on a large card, which he delivered to Daniel Dowd, director of the State Crime Laboratory.

Third, Daniel Dowd testified that at about 1:30 in the early morning of April 16, 1971, the Hooley automobile was delivered to him by the Madison Police Department. The automobile was sealed and locked in the Crime Laboratory garage, where later in the morning Dowd removed from the rear seat Hooley’s brief case or attaché case and dusted it for fingerprints. Dowd testified that he “developed rigid detail” of latent fingerprints on the lock of the case. He then called in Kenneth Sundberg, photographer and analyst for the Crime Laboratory, to photograph the fingerprint found on the lock.

Fourth, Kenneth Sundberg testified that on April 16, 1971, he photographed the latent print on the latch of the case and then enlarged the photograph. The enlargement was delivered to Daniel Dowd.

Finally, Dowd testified that he received the fingerprint card (exhibit 15) from Marshal Eastman. He compared the rigid detail developed from the attaché case with the inked impressions on the fingerprint card. He then requested Haney to photograph and enlarge the right middle fingerprint of defendant, which Haney did and delivered to him. He requested Sundberg to photograph and enlarge the attaché case fingerprint, which Sundberg did and delivered to him. Dowd testified that he taped and marked to two enlargements as they appeared on exhibit 18. He also testified that the work of Haney and Sundberg was done under his supervision and control; that the photograph from the case was taken in his presence; and before the jury he identified the enlarged fingerprint of defendant as being the same as the right middle finger of defendant from the fingerprint card (exhibit 15).

Dowd then testified that there were fifteen points of identification between defendant’s right middle finger and the fingerprint taken from Hooley’s ease. He concluded that “the rigid detail appearing on the photograph taken from the attaché case and the inked fingerprint impression appearing on the fingerprint card, Exhibit 15, were made by the same finger.”

We conclude that the government laid a complete foundation for the introduction of plaintiff’s exhibit 18 and for Dowd’s opinion. Dowd, of course, was also qualified as a fingerprint expert.

II

Defendant was indicted on May 25,1971. On March 15,1972, defendant’s attorney moved for the entry of an order compelling the prosecution to conduct a pre-trial lineup identification of the defendant by witnesses whom the government intended to call at the trial. In the alternative, defendant requested that he be allowed to sit in the courtroom at the trial among several individuals of “similar complexion and build.” The trial judge ordered that the Dane County Sheriff’s Department in conjunction with the Federal Marshal’s Office conduct a lineup identification by all government witnesses. That lineup took place outside of court shortly after the trial commenced.

Some government witnesses in statements prior to, and in testimony at, the trial, identified the supposed criminal as having an Afro haircut and a mustache but no beard. Prior to the lineup and trial, the defendant had cropped his hair short, shaved off his mustache and sideburns, and had grown a goatee. Defendant’s counsel located as many persons fitting the prior description of the defendant as he could find on the street and offered to pay them to appear in the lineup. The lineup consisted of eight black males including defendant.

Defendant was six feet tall and weighed 150 pounds. The other seven persons were all from five feet eight inches to six feet tall and weighed from 147 to 175 pounds. Six of them (not including defendant) had mustaches. Four (not including defendant) had Afro haircuts and sideburns longer than defendant then wore. Despite all of this, the kidnap victim, John G. Hooley, and one of the two female clerks who were working at the motel desk in Rockford when the robbery occurred, identified defendant out of the defendant’s carefully manufactured lineup.

In view of the positive fingerprint identification linking the defendant to the kidnapping, the result of the lineup identification is not significant in itself. However, defendant complained that the prosecutor’s following comments to the jury in his opening statement violated defendant’s privilege against self-incrimination contrary to the Fifth Amendment:

“[W]e will show the extremely difficult and adverse conditions in which that line-up was taken because it wasn’t mine — it was Mr. Miller’s [defendant’s counsel] line-up * * * * [W]e intend to prove to you and I think the court will give us the opportunity to prove that the defendant, between the time this line-up was discussed and the time that the line-up was held, took an Afro haircut off, took off a mustache, and between the time he was booked until now, wore a goatee.”

The government also called as witnesses an employee of the Dane County Sheriff’s Office who testified that defendant changed his appearance just before the trial, and the trustee barber who cut his hair and shaved him prior to the trial.

The district judge, in his opinion denying defendant’s motions for a judgment, of acquittal and for a new trial, said that in a pre-trial conference “I stated that my intention was to advise the jury myself that the defendant had altered his appearance radically just pri- or to the trial and just prior to the line-up.” When the prosecutor mentioned the subject in his opening statement, however,

“I became persuaded that there was no practical way to bottle up the subject thereafter, even had it appeared best that it be bottled up; and that there was no feasible compromise procedure between the alternative of prohibiting any further references to the matter, on the one hand, or permitting complete freedom of action on the matter, on the other. Accordingly, the latter alternative was chosen and counsel were advised that both the plaintiff and defendant were free thereafter to go into the matter of the defendant’s alteration of his appearance.”

The trial judge, comparing the comments on the change of appearance with the introduction of evidence of flight, said:

“I conclude that this was not unfair. [A]n innocent man is quite free to decide to fly, and to fly to South America the morning after a murder, but a jury is free to consider the decision to fly and the flight as some evidence of guilt. Similarly, an innocent man is free to change his appearance at any time, but a decision to change it and an actual alteration made a few days before the opening of the trial and a line-up may be considered as some evidence of guilt.”

We agree with the district judge under the circumstances of this case.

At common law no one accused of crime could be compelled to testify against himself nor was he permitted to testify in his own behalf. In 1878, Congress enacted what is presently 18 U.S.C. § 3481, permitting the defendant in a criminal action to appear as a witness in his own behalf at his own request but providing that “[h]is failure to make such request shall not create any presumption against him.” In Wilson v. United States, 149 U.S. 60, 65, 13 S.Ct. 765, 766, 37 L.Ed. 650 (1893), the Supreme Court interpreted the statute .to require that in order “[t]o prevent such presumption being created, comment, especially hostile comment, upon such failure must necessarily be excluded from the jury.” The statute was further interpreted in Bruno v. United States, 308 U.S. 287, 292-293, 60 S.Ct. 198, 84 L.Ed. 257 (1939), to conclude that a defendant in a federal court is entitled as a matter of right upon his own request to have the jury instructed that he need not testify and that no presumption arises from his failure to do so.

In Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965), involving a state court trial, the Court held that “the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.”

In the present case, there is no statute which can be interpreted to prevent commenting upon a defendant’s self-wrought change of appearance. From a constitutional standpoint, it is well-established that a person may lawfully be compelled to exhibit or demonstrate physical characteristics.

In Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910), a witness testified that the defendant had put on a blouse and it fit him. The defendant argued that this testimony violated his Fifth Amendment privilege because he had put on the blouse under duress. Mr. Justice Holmes dismissed the argument by saying that “the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.” Id. at 252-253, 31 S.Ct. at 6.

Compelling a suspect to submit to a withdrawal of a sample of his blood for analysis for alcohol content and the admission in evidence of the analysis report are not compulsion prohibited by the privilege against self-incrimination. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Compelling a person to speak within hearing distance of the witnesses and even to utter words purportedly uttered by a bank robber are not prohibited compulsion. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Nor is the compelled production of recorded voice exemplars constitutionally prohibited. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L. Ed.2d 67 (1973). Nor is the compelled production of handwriting exemplars within the Fifth Amendment protection. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973); United States v. Rogers, 475 F.2d 821 (7th Cir. 1973).

This authority would seem to support a requirement that defendant appear in court for identification as he appeared at the occurrence or at least as he appeared before he changed his physical appearance. But we need not go that far in this case because the court made no such requirement. The eases undoubtedly support the lesser tool for the prosecution, that is, commenting upon the change of appearance and introducing evidence that such change actually occurred and when it took place, in combating what is apparently becoming a popular defense tactic.

We have considered defendant’s other arguments and find them to be without merit.

The conviction is affirmed.

Affirmed.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William Walter NELSON, Defendant-Appellant.
    No. 72-2383.
    United States Court of Appeals, Ninth Circuit.
    April 12, 1973.
    John Herbert (argued), San Francisco, Cal., for defendant-appellant.
    James H. Daffer, Asst. U. S. Atty. (argued), James L. Browning, John Cooney, F. Steele Langford, Asst. U. S. Attys., San Francisco, Cal., for plaintiff-appellee.
    Before BROWNING and DUNIWAY, Circuit Judges, and BURNS, District Judge.

       Honorable James M. Burns, United States District Judge for the District of Oregon, sitting by designation.

   PER CURIAM:

Nelson appeals his conviction under 50 U.S.C. App. § 462(a) for refusal to submit to induction in the armed services. We reverse.

Nelson filed his request for classification as a conscientious objector on December 4, 1968. On December 16 his local board classified him I-A. On January 20, 1969, Nelson appeared personally before the board. The board refused to reopen on the ground that Nelson’s claim was not based on religious grounds but “on a personal moral code.”

Nelson appealed. The appeal board classified him I-A.

In September 1970, however, the State Director ordered the local board to reconsider, stating, “Our review of the selective service file of the registrant fails to disclose sufficient grounds to overcome a basis in fact in the claim of the registrant under the Welsh decision.”

Pursuant to the State Director’s order, the local board met on November 20, 1970, and, without requesting that Nelson appear before them, again denied his claim. The board stated: “After review, considering the registrant’s demeanor and responses to questions asked at the personal appearance of January 20, 1969, the local board finds the registrant insincere.” Nelson did not appeal.

In the course of these criminal proceedings, the government stipulated that no member of the panel who participated in the November 1970 classification had been present when Nelson made his personal appearance before the board in January 1969. Thus, no member of the panel that found Nelson insincere on the basis of his demeanor had ever seen or spoken to him.

Nelson challenges the rejection of his C.O. claim on two grounds: (1) that the board’s action was without basis in fact; and (2) that the board denied him due process.

The government argues that Nelson cannot attack the November 1970 classification because he did not take an administrative appeal. The district court held that Nelson’s basis-in-fact defense was barred by his failure to exhaust administrative remedies, but that his due process claim was not barred. We agree.

For the reasons spelled out in McGee v. United States, 402 U.S. 479, 486, 489-490, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971), the policies served by the exhaustion requirement are “decisively implicated” when a registrant challenges the denial of a conscientious objection claim as without basis in fact. Those policies would not be served, however, by denying judicial review of Nelson’s due process defense.

No administrative discretion or expertise is involved in determining whether it was a violation of due process for the members of the local board to base their decision upon Nelson’s “demeanor” in an appearance 22 months earlier before other persons, rather than requiring him to appear before them, as they had a right to do. 32 C.F.R. § 1625.1(c).

The government does not suggest that an administrative appeal would have resulted in a fuller factual record on the due process issue.

Allowing those few who are “similarly situated” to Nelson to bypass administrative appeals could hardly “seriously impair the Selective Service System’s ability to perform its functions.” McKart v. United States, 395 U.S. 185, 197, 89 S.Ct. 1657, 1665, 23 L.Ed.2d 194 (1969).

Finally, the exhaustion doctrine is not to be applied merely because the appeal board might have granted appellant relief on some ground and thus have obviated the need for prosecution. See McKart v. United States, supra.

The lower federal courts have held the exhaustion requirement inapplicable to claims analogous to Nelson’s due process claim. In United States v. Collins, 339 F.Supp. 767 (W.D.Mich.1972), the local board terminated Collins’ III-A (hardship) deferment and classified him I-A. He did not appeal. In a subsequent criminal prosecution he contended that he had been denied due process because the board relied upon anonymous information of which he had no notice. The government responded that Collins had not exhausted his administrative remedies. The court held that Collins’ due process claim was not barred, stating: “Regardless of its merits, this claim is a purely procedural one, not turning on the resolution of any disputed facts which could better have been left to the experienced expertise of the administrative system and not directly contesting the factual, or even legal, basis of the reclassification decision itself. Hence, the exhaustion doctrine is not applicable.” 339 F.Supp. at 772. Accord, Wills v. United States, 384 F.2d 943, 945 (9th Cir. 1967); United States v. Weaver, 336 F.Supp. 558, 562 (E.D.Pa.1972); United States v. Mallory, 305 F.Supp. 915, 920 (N.D.Calif.1969).

Turning to the merits, we conclude that Nelson’s due process claim is well taken.

The evidence that none of the board members who decided that Nelson was insincere because of his “demeanor” actually observed him was sufficient to rebut the presumption of administrative regularity and require the government to prove that due process was not violated.

The government offers three theories in justification: (1) “demeanor” doesn’t mean “demeanor”; (2) the board members who finally rejected Nelson’s C.O. claim may have consulted with the persons who did observe Nelson at his personal appearance 22 months earlier; or (3) they may have relied on Nelson’s written summary of what went on at that appearance.

We reject the first suggestion because we must assume the board means what it says if judicial review is to have meaning. We reject the remaining suggestions because we cannot accept their premise that appellant’s demeanor could be appraised by any method other than personal observation. Nelson was entitled to the judgment of the members who composed the board when his 1-0 application was finally rejected, not the “borrowed” judgment of the earlier board. The new members could easily have called Nelson in and made their own decision as to the significance of his appearance.

The judgment of the district court is reversed.

      . The case was tried on two separate days some two and one-half weeks apart. Between trial days, appellant’s counsel learned that the two panels had been composed of completely different board members. The government then stipulated to the fact on the second trial day.

      . For definitions of “demeanor,” see Dyer v. MacDougall, 201 F.2d 265, 268-69 (2d Cir. 1952); Rains v. Rains, 17 N.J. Misc. 310, 8 A.2d 715, 717 (1939).


text:
    Robert G. McCRAY, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.
    No. 72-3543
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 27, 1973.

      Richard H. Dorrough, Montgomery, Ala. (Court-Appointed), for petitioner-appellant.
    William J. Baxley, Atty. Gen., Don C. Dickert, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 431 F.2d 409, Part I (5th Cir. 1970).

   PER CURIAM:

Robert G. McCray, a prisoner incarcerated by the State of Alabama under two convictions for robbery, appeals from the denial of his latest petition for a writ of habeas corpus. We affirm.

In 1964 an Alabama grand jury returned three indictments against McCray, two charging robbery and a third charging grand larceny in the theft of an automobile. At arraignment, counsel was appointed and McCray pled not guilty to each indictment. Subsequently, in the presence of the trial court, McCray changed his plea on both robbery counts to guilty. A sentencing jury affixed the punishment at life imprisonment on one robbery indictment, and a second sentencing jury affixed punishment of ten years imprisonment on the other robbery charge. The third indictment for grand larceny was marked nolle prosequi by State officials.

McCray now alleges that one of his guilty pleas — the one which led to the life sentence — is constitutionally infirm since he was the hapless victim of an unkept plea bargain. Specifically, McCray claims that both of his guilty pleas were entered on advice of his attorney who informed him of an agreement with the state solicitor under which, in exchange for his agreement to enter these two pleas, the State would recommend to the separate sentencing juries ten-year sentences on each robbery count. He alleges that not only did the State fail to carry out its side of the bargain to recommend the minimum ten-year sentence to each jury, but also that the trial judge informed the sentencing jury which rendered the verdict of life imprisonment that he had entered a guilty plea to the other robbery charge, thereby prejudicing that jury against him. McCray contends that these events made his guilty plea and resulting life sentence constitutionally infirm. See Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L.Ed.2d 427 (1971), and Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).

This is McCray’s third petition for habeas relief in federal court. His first petition in 1966 was denied for failure to exhaust state remedies. In 1968 he filed a second habeas petition in the district court for the Southern District of Alabama alleging essentially the same facts as those presented in the present petition. That district court, having considered the full record developed in two coram nobis proceedings, in Alabama state courts, found that McCray’s guilty pleas were freely, voluntarily, and understandingly made. McCray v. Hale, [No. 4942-68-P] (S.D.Ala., June 14, 1968).

The record from the 1965 coram nobis hearing contains not only the testimony of McCray but also that of his wife and of the attorney who represented him at the time of his conviction. At this hearing the state solicitor who had originally prosecuted McCray acknowledged that he had recommended to the trial judge and to the sentencing juries life imprisonment on one indictment and ten years on the other, and took the adamant stance that this was the true and only bargain offered to and accepted by McCray and his counsel. On cross-examination McCray denied that he had been informed that a life-and-ten, rather than a ten-and-ten recommendation by the State’s attorney was part of the bargain for his guilty plea, but he admitted that he and his counsel did not object during the pro-which the recommendations were made, ceedings before the sentencing juries in McCray and his counsel further sat mute when the juries returned the respective sentences as recommended. Indeed, McCray’s trial attorney testified that he had told McCray of the solicitor’s promise to recommend life-and-ten and that his client had freely accepted the offer of life-and-ten in order to avoid the possibility of a death sentence.

In light of the records developed in the state coram nobis hearing, we find no factual basis for McCray’s present allegations that his guilty pleas were made in exchange for an unkept bargain to recommend ten-and-ten. Thus, the appellant fails to bring his case within the ambit of Santobello or Machibroda.

The petitioner also contends that his pleas were involuntary since they were coerced by fear of the death penalty. The claim that he would not have pled guilty but for the threat of a death sentence does not require a finding that his guilty plea was involuntary, especially where the appellant was represented by experienced counsel upon whose advice he relied. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed. 2d 162 (1970). We find Alford in no way affected by the subsequent decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), insofar as the present case is concerned.

McCray asserts numerous defects in the proceedings prior to his guilty pleas. Each of these claims is non jurisdictional and was therefore waived by his voluntary guilty plea. Zales v. Henderson, 433 F.2d 20 (5th Cir. 1970); Busby v. Holman, 356 F.2d 75 (5th Cir. 1966).

The denial of the writ of habeas corpus is

Affirmed.

      . Ala. Code tit. 14, § 415, provides that “any person who is convicted of robbery shall be punished, at the discretion of the jury, by death, or by imprisonment in the penitentiary for not less than ten years.” Under Alabama law, a jury must fix the sentence in any capital case, including those cases in which the defendant enters a guilty plea. Ala. Code tit. 30, § 70. This duty is mandatory and the trial judge cannot relieve the jury of its exclusive prerogative. See, e. g., Ex parte Jenkins, 38 Ala.App. 117, 76 So.2d 858 (1955).

      . McCray’s present petition suggests that the proceedings in regard to indictment #1673, for which he received ten years, preceded the proceedings in regard to indictment #1672, in which punishment was affixed at life. This alleged chronology is contrary to the certified records of the circuit court for Montgomery, Alabama and contrary to McCray’s own testimony at his 1965 cornm nobis hearing discussed below.

      . McCray filed ins first petition for writ of coram nobis in 1965. The circuit court for Montgomery County denied relief after a full evidentiary hearing concerning the voluntariness of his guilty pleas, the plea bargain, and the effectiveness of his trial counsel. In 1966, McCray filed a second coram nobis petition in the state circuit court, which was dismissed after another evidentiary hearing. The dismissal was affirmed, 282 Ala. 315, 211 So.2d 450 (1968).

      . The district court denied a certificate of probable cause, 28 U.S.C. § 2253, and this court likewise denied the petitioner’s application for a certificate and leave to ajjpeal in forma pauperis. McCray v. Hale, Misc. No. 1406 (5th Cir., July 23, 1969). This second appeal by McCray comes here on a certification of probable cause by the third district judge to consider his petitions.

      . The habeas petition alleges the following constitutional infirmities: (1) that the members of the sentencing jury were selected in his absence; (2) that he was denied counsel at his preliminary hearing ; (3) that he was not served with a copy of the indictment and the jury list; (4) that he was exposed to direct confrontation with the alleged victims of the robbery rather than in “a legal line-up; ” (5) that there was prejudicial pre-trial publieity; (6) that police officers made false statements to prospective witnesses in order to prejudice them against the defendant; (7) that the alleged victims of the robberies attempted to “trick” him into a confession on the representation that charges would not be prosecuted; and (8) that police officers identified the defendant to the victims of the alleged robberies as “the man that robbed them”.


text:
    BOB JONES UNIVERSITY, Appellee, v. John B. CONNALLY, Secretary of the Treasury of the United States and Johnnie M. Walters, Commissioner of Internal Revenue, Appellant.
    No. 72-1075.
    United States Court of Appeals, Fourth Circuit.
    Submitted Feb. 5, 1973.
    Decided March 21, 1973.
    Before BOREMAN, Senior Circuit Judge, and WINTER and BUTZNER, Circuit Judges.
   PER CURIAM:

Bob Jones University (Jones University) petitions for rehearing and suggests rehearing in banc on the ground, inter alia, that our decision, 4 Cir., 472 F.2d 903, is in conflict with the decision of the District of Columbia Circuit in “Americans United” Inc. v. Walters, 477 F.2d 1169 (D.C. Cir. 1973). Of course we were unaware of Americans United in deciding our case, but we see no conflict between the two.

In Americans United, the District of Columbia Circuit held that the taxpayer was not barred by § 7421 from seeking to have declared unconstitutional, and to enjoin the enforcement of, the provision of § 501(c)(3), I.R.C. of 1954, which denies tax-exempt status to an organization, otherwise exempt under that statute, which engages substantially in activities to influence legislation or participates in political campaigns.

An examination of the opinion discloses that Americans United was exempt from taxation on its own income by both §§ 501(c)(3) and 501(c)(4), I.R.C. 1954. By virtue of its exemption under § 501(c)(3), contributions were deductible by donors. Only the 501(c)(3) exemption was revoked. As a consequence, only the deductibility of contributions by donors was removed; the exemption from taxation of its other income was not removed from Americans United. The Court ruled that individual donors could not litigate the deductibility of their contribution; and as a result, the only way in which the question of deductibility of contributions could be litigated was by Americans United in the suit which it filed. In a literal sense, such a suit by Americans United was not a suit for the purpose of restraining the assessment or collection of any tax as proscribed by § 7421 since no revenues taxable to Americans United could be affected.

The same is not true with respect to Jones University. In our case, the sole exemption lay in § 501(c)(3) and this exemption was the one sought to be revoked on the ground of racially discriminatory policies. If the. revocation was proper, not only would contributors to Jones University not be entitled to a deduction for their contributions, but Jones University would be taxable on its other income. Because of the latter, the suit was one literally within § 7421, i. e., a suit to restrain the assessment or collection of a tax.

Thus, we think that the cases are distinguishable. Jones University’s other grounds for granting the petition also do not persuade us. Therefore, with Judge Boreman dissenting, we deny rehearing. No judge eligible to do so has requested a poll on the suggestion for rehearing in banc.

Petition denied.


author: JOHN R. BROWN, Chief Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William C. DOUGLASS, Defendant-Appellant.
    No. 72-3136
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 6, 1973.

      Larry Helm Spalding, Sarasota, Fla., for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   JOHN R. BROWN, Chief Judge:

In this direct criminal appeal of a misdemeanor conviction under 26 U.S.C.A. § 7203 for failing to supply proper information to the Internal Revenue Service, we are asked to determine (i) if the Appellant’s intentional refusal to file IRS Form 1040 can be equated with the element of willfulness required by that penal statute and (ii) if the assessment of a prison term for violation of § 7203 actually is an unconstitutional imprisonment for debt. Seeing no distinction between an intentional act and a willful one for the purpose of this statute, and finding no element of a debt involved in this particular statute, we affirm the conviction.

Criminal Disobedience

William Campbell Douglass, a medical doctor with a practice in Sarasota, Florida, was and is a self-styled American Patriot — a super-patriot by some standards. So patriotic, in fact, is he, that he conscientiously conceives it to be his duty to resist in all ways the declaration, assessment, and payment of his income taxes. To his credit, the record affirmatively reflects that Dr. Douglass is both undeniably mentally competent and deadly serious. Thus, there has never been any question that the acts complained of in the government’s information were those of an individual acting intentionally and rationally.

Indeed, the heart of the matter is that Dr. Douglass believes the Internal Revenue System is unconstitutional and that the voluntary payment of any taxes constitutes treason against the United States. While it would consume much space to fully detail the beliefs which provoke this conclusion, we can attempt to summarize.

For many years, William C. Douglass has participated in the activities of organizations and groups which oppose communism through education and propaganda. Among Dr. Douglass’ most notable associations are his involvement with the Liberty Amendment Committee, an educational group which seeks repeal of the 16th Amendment, and the organization known as “Let Freedom Ring.” The latter group sponsors tape-recorded messages on various topics of public interest which individuals may hear by calling a telephone answering device in various cities.

Spurred by his activities in these and other such groups, Dr. Douglass evidently began to evolve a philosophy about the Internal Revenue System and the payment of income taxes. Reduced to its essentials, this philosophy is (i) the federal government, because of the influence of certain communists or communist sympathizers, has given monetary and other forms of aid to enemies of the United States, (ii) to contribute to this aid by paying taxes would be treason, and (iii) the income tax is itself unconstitutional or at least is being illegally administered because it is not levied equally on all citizens. Accordingly, for the tax year 1966 and 1967 Dr. Douglass filed IRS Form 1040 with only his name, address, signature, and the words “UNDER PROTEST” written in bold letters across the face of the report. No financial information or data of any other sort was given on these reports.

As a consequence, Dr. Douglass was convicted by a jury of the two violations of § 7203, note 1, supra, and was sentenced to a jail term and period of probation.

A Red Flag

It takes no great mental gymnastics to sidestep the questions of who is or is not a communist, which actions of the federal government were or were not legitimate, and which of its officers are traitors. These are political questions which a citizen may air as he thinks best. Ordinarily, the forum for Dr. Douglass to urge his charges of mismanagement, skulduggery and treason would be the public arena, i. e., the halls of Congress, the newspapers, and such. This time he chose not one of these but the courts. The Court turns out to be a poor forum, not because the judiciary fails to credit his claims, but because it holds that these beliefs afford no defense.

Willfulness

Having unburdened the issues in this case of all excess baggage, we proceed to determine the narrow question of whether on this record the element of willfulness required by 26 U.S.C.A. § 7203 can be properly attributed to Dr. William Campbell Douglass.

There does not seem to be any contention that Appellant acted involuntarily or from some uncontrollable compulsion. His only contention is that the government failed to show he acted with a “bad purpose,” and that the following portion of the Court’s charge to the jury was erroneous:

“I have permitted to come before you without limiting testimony of the defendant bearing on his political philosophy with regard to the United States Government. It is not a defense that the failure to furnish tax information required by the Internal Revenue law was done for the purpose of protesting Government policies, even if such protest is with good motive.”

We think this was a correct statement of the law. The “bad purpose” or “evil motive” principle on which Appellant so heavily relies, is not the appropriate test for this statute. Although “willful” or “intentional” can have many meanings, for a statute of this kind (see note 1, supra), it only requires that the act be purposefully done with an awareness of the action and not just negligently or inadvertently. Rather, this concept is simply one which excuses a negligent failure to file the information required by the statute. Dr. Douglass gets no comfort from United States v. Murdock, 1933, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381, which he so strongly urges. There the Supreme Court spelled out one test for willfulness:

“The word often denotes an act which is intentional, or knowing, or voluntary as distinguished from accidental. But, when used in a criminal statute it generally means an act done with a bad purpose; without justifiable excuse; stubbornly, obstinately, perversely. The word is also employed to characterize a thing done without ground for believing it is lawful, or conduct marked by a careless disregard whether or not one has the rights so to act.”

290 U.S. at 394, 54 S.Ct. at 225, 78 L. Ed. at 385. (Citations by the Court omitted).

Douglass took the stand in his own defense and acknowledged he was aware of his obligation to declare and pay taxes. He advanced no excuse for the dereliction save that of political protest. Clearly the jury was entitled to conclude that this total omission was intentional, deliberate and voluntary. To say it was these but it was not willful is a mere game of semantics. The word may not be twisted to the point of meaninglessness. Indeed, Appellant’s brief tells us that “negligence and willfulness are of necessity mutually exclusive terms.”

Since we think it is clear enough that one may not pick and choose which laws he will obey and which he will disregard, regardless of how conscientious may be his beliefs, we give to the words of the statute the traditional meaning and reject the notion urged upon us by Dr. Douglass.

Debt

The contention that Dr. Douglass’ prison sentence constitutes imprisonment for debt borders on the frivolous. It is evident that there is nothing in the information charging Dr. Douglass with a failure to pay income taxes. At trial, the testimony which related to the taxes owing by Douglass was introduced for the purpose of establishing that the defendant was one who was obligated to file a return and declare data respecting his income, not to prove the fact of the debt itself. Accordingly, we need not look behind the words of the statute to find something that is not there. Douglass only stands convicted of a failure to file a return in compliance with 26 U.S.C.A. § 7203.

Affirmed.

      . “§ 7203.. Willful Failure To File Return, Supply Information, or Pay Tax.
      Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return (other than a return required under authority of Section 6015), keep records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor, and upon conviction thereof, shall be fined not more than $10,000 or imprisoned not more than 1 year, or both, together with the costs of prosecution.”
      (emphasis supplied).

      . As an appendix to the briefs submitted in this appeal, Dr. Douglass included a 76-page booklet, The William, Campbell Douglass Letters, which details some of his quixotic jousts against IRS. Reprinted there are some of Appellant’s letters to the Secretary of the Treasury. A partial list of the many jiersons named therein as communists and their sympathizers are: the late Presidents of the United States, Dwight D. Eisenhower, Lyndon B. Johnson, and Franklin D. Roosevelt; former Vice-President Hubert Humphrey; former Chief Justice Earl Warren, the late Justice Hugo L. Black, and Justice William O. Douglas; former Secretary of State Dean Rusk; United States Senators Bayli, Brewster, Móndale, Proxmire, Church, and others ; former Attorney General Nicholas Katzenbach ; and many, many others.

      . Testimony in the record indicates that Dr. Douglass did not pay his taxes for those years, and that for the subsequent years of 1968-1970, he has filed only a similar Form 1040 “under protest.”

      . The record amply supports the jury’s implied conclusion, as the following excerpts from direct and cross-examination of Appellant show:
      Q [By Appellant’s Counsel] Would you state to the Ladies and Gentlemen of the Jury, Dr. Douglass, what you mean and what you meant by the words “Under Protest,” sir?
      A * * *
      . . . I made a decision and it was an irrevocable one, that I would not again contribute to a tax system that is being used to destroy your country, my children’s country and my country.
      * * *
      Q [By the Government Prosecutor] Doctor would you admit that you failed to provide this information or pay taxes only after a considerable amount of thought and soul-searching?
      A Yes, that is certainly true.

      . See Roe v. United States, 5 Cir., 1961, 287 F.2d 435, at 441-442 and note 11, and United States v. DeWitt, 5 Cir., 1959, 265 F.2d 393, 402-404 (dissenting opinion), which catalogue many of the cases for both positions urged here: for the appellant, United States v. Kemble, 3 Cir., 1952, 197 F.2d 316; Hargrove v. United States, 5 Cir., 1933, 67 F.2d 820, 90 A.L. R. 1276; Bloch v. United States, 9 Cir., 1955, 221 F.2d 786; St. Johnsbury Trucking Co. v. United States, 1 Cir., 1955, 220 F.2d 393; Boyce Motor Lines, Inc. v. United States, 1952, 342 U.S. 337, 72 S. Ct. 329, 96 L.Ed.2d 367; Automatic Canteen Co. of America v. F.T.C., 1953, 346 U.S. 61, 73 S.Ct. 1017, 97 L.Ed. 1454; for the government, United States v. Dotterweich, 1943, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48; United States v. Balint, 1922, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604; United States v. Behrman, 1922, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619. The cases are discussed at length in Morissette v. United States, 1952, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288.

      . Trial Record page 394.

      . See United States v. Moylan, 4 Cir., 1969, 417 F.2d 1002, (the so-called “Catonsville Nine” trial) where the several defendants motivated by a sincere commitment against the war in Southeast Asia had entered a local draft board office to remove and destroy draft records. Although defendant undertakes to factually distinguish the crime there from the instant appeal, we think the principle is much the same. There, as here, “defense counsel urged upon the court a more expansive interpretation of the word ‘willful’ as used in the statutes, namely that no violation occurred unless defendants performed the admitted acts with a bad purpose or motive.” 417 F.2d at 1004. In rejecting this approach, the court went on to say:
      The defendants’ motivation in the instant case — the fact that they engaged in a protest in the sincere belief that they were breaking the law in a good cause— cannot be acceptable legal defense or justification. Their sincerity is beyond question. It implies no disparagement of their idealism to say that society will not tolerate the means they chose to register their opposition to the war. If these defendants were to be absolved from guilt because of their moral certainty that the war in Vietnam is wrong, would not others who might commit breaches of the law to demonstrate their sincere belief that the country is not prosecuting the war vigorously enough be entitled to acquittal? Both must answer for their nets.
      417 F.2d at 1009.

      . See United States v. Acker, 6 Cir., 1969, 415 F.2d 328; United States v. Matosky, 7 Cir., 1970, 421 F.2d 410, cert. denied, 398 U.S. 904, 90 S.Ct. 1691, 26 L.Ed.2d 62.

      . The remaining cases which Douglass cites for the notion that a “good faith political protest” negates the element of willfulness are factually distinguishable and in every case, inapposite. E. g., Spies v. United States, 1943, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418, stands for the proposition that the combination of misdemeanors of failure to file and failure to pay the tax do not make out the felony crime of willful evasion, even though the two lesser acts were done intentionally.
      Haner v. United States, 5 Cir., 1963, 315 F.2d 792, was a case where this court reversed (one Judge dissenting) a conviction where the court’s charge seemingly allowed the jury to convict for a “careless or inadvertent” failure to file. Nevertheless, we emphasized that “ ‘willful’ generally means intentional, knowing, or purposeful, as opposed to careless, thoughtless, heedless, or inadvertent, and it means nothing less as used in Section 7203.” 315 F.2d at 794. (Emphasis omitted).


author: KENT, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellant, v. KELSEY-HAYES COMPANY et al., Defendants-Appellees.
    No. 72-1036.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 17, 1972.
    Decided April 3, 1973.
    Ralph B. Guy, U. S. Atty., Detroit, Mich., Irwin A. Seibel, Atty., Dept, of Justice, Washington, D.C., for plaintiff-appellant; Walker B. Comegys, Acting Asst. Atty. Gen., Howard E. Shapiro, George Edelstein, Attys., Dept. of Justice, Washington, D. C., on brief.
    Victor W. Klein, Detroit, Mich., for plaintiff s-appellees; (Butzel, Long, Gust, Klein & Van Zile, Detroit, Mich., on brief for Kelsey-Hayes Co., and Gerald E. Doherty [Robert M. Klein, Reuben M. Waterman, Jr., Detroit, Mich., of counsel]; Cahill, Gordon, Sonnett, Reindel & Ohl, New York City, on brief for Motor Wheel Corp. and Anson D. Grimes [David R. Hyde, Allen S. Joslyn, New York City, of counsel]; Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., on brief for The Budd Co. [Ralph W. Brenner, Sheldon S. Toll, Philadelphia, Pa., of counsel]).
    Before PHILLIPS, Chief Judge, and WEICK and KENT, Circuit Judges.
   KENT, Circuit Judge.

This appeal relates to a criminal contempt proceeding instituted in the United States District Court for the Eastern District of Michigan on October 20, 1969. An order to show cause was issued by the late Judge Theodore Levin. The contempt proceeding relates to alleged violations of certain provisions of a consent decree entered in an anti-trust case on July 1, 1955. After the contempt proceeding was instituted pretrial conferences were held by the late Judge Levin, as a result of which the Government was directed to produce documents and to enter into conferences with counsel for the respondents in an effort to define and narrow the issues and to ascertain the claims and theories of the Government for the purpose of apprising the respondents of the claims against them and expediting the proceedings upon trial of the contempt action.

For a period of months Judge Levin complained about the reluctance of the Government to comply with his directions and orders relating to discovery and as to the narrowing of issues and definition of the Government’s claims. After much preliminary skirmishing the respondents filed a motion to dismiss the proceedings. In the motion the respondents’ allegations were that “(1) The statement of the claims and the admissions and definitions of issues made by the Government * * * are such that said petition and claims fail to state or constitute a cause of action of criminal contempt * * *. (2) The statement of the claims and the admissions and definitions of issues * * * clearly show that there is a lack of probable cause * * *. (3) The petition, as construed by admissions and definitions of issues * * * is * * * equally consistent with innocence as with guilt * *. (4) The exercise of appropriate judicial discretion, authority and power * * * should impel the Court at this time to dismiss this action of alleged criminal contempt * *

After considering the briefs and arguments of counsel, the District Judge, who took the case over from the late Judge Levin, dismissed the proceedings after rendering a lengthy opinion reciting the theories of the parties, the concessions of the Government, and an analysis of the facts as the trial court considered them to be demonstrated by the pretrial proceedings, and concluded:

“[I]t is manifest to the Court as a matter of law that there was no wilful contumacious violation of the Consent Decree by respondents and that, at all events, there is a lack of probable cause or that further prosecution will not serve the public interest and is unnecessary to safeguard or preserve the ‘authority or dignity of the Court’ or its orders.”

At the time this case was argued this Court was of the opinion that the order dismissing the action, from which this appeal was taken, was an appealable order within the meaning of the Criminal Appeals Act, 18 U.S.C. § 3731, prior to its amendment by Public Law 91-644. Clearly, a criminal contempt action is a criminal case within the meaning of the Act. United States v. Sanders, 196 F.2d 895, 897 (10th Cir. 1952), cert. denied 344 U.S. 829, 73 S.Ct. 33, 97 L.Ed. 645 (1952).

“An application to show cause why defendant should not be prosecuted for criminal contempt is equivalent to an information charging criminal contempt, under Rule 42(b) of the Federal Rules of Criminal Procedure, 18 U.S.C. and a criminal contempt proceeding is a criminal ease within the meaning of 18 U.S.C. § 3731. An order dismissing a criminal contempt proceeding is appealable under the Criminal Appeals Act.”

Even more persuasive is the language of the Supreme Court in Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 1481, 20 L.Ed.2d 522 (1968):

“Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both. In the words of Mr. Justice Holmes:
‘These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech.’ Gompers v. United States, 233 U.S. 604, 610 [34 S.Ct. 693, 695, 58 L.Ed. 1115] (1914).
“Criminally contemptuous conduct may violate other provisions of the criminal law; but even when this is not the case convictions for criminal contempt are indistinguishable from ordinary criminal convictions, for their impact on the individual defendant is the same. Indeed, the role of criminal contempt and that of many ordinary criminal laws seem identical — protection of the institutions of our government and enforcement of their mandates.” (footnote omitted)'.

See also United States v. Goldman, 277 U.S. 229, 235, 236, 48 S.Ct. 486, 72 L.Ed. 862 (1928); Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 444, 31 S.Ct. 492, 55 L.Ed. 797 (1911); United States v. Peterson, 456 F.2d 1135, 1139 (10th Cir. 1972).

A motion to dismiss is in effect a demurrer to the indictment, the information or in this case the petition. It has long been the law that matters outside the indictment are not to be considered on a demurrer. Dunlop v. United States, 165 U.S. 486, 17 S.Ct. 375, 41 L.Ed. 799 (1897); United States v. Comyns, 248 U.S. 349, 39 S.Ct. 98, 63 L.Ed. 287 (1919). Some erosion of this rule may be found in United States v. Fruehauf, 365 U.S. 146, 81 S.Ct. 547, 5 L.Ed.2d 476 (1961), and see also United States v. Apex Distributing Co., 270 F.2d 747 (9th Cir. 1959), noted with approval in United States v. Sisson, 399 U.S. 267, 293 n. 22, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970).

We consider, however, that the issue has been put to rest in United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972). In the opinion of the Court, speaking through Mr. Chief Justice Burger, we find the following at page 506, 92 S.Ct. at page 2534:

“Under United States v. Sisson, 399 U.S. 267 [90 S.Ct. 2117, 26 L.Ed.2d 608] (1970), an appeal does not lie from a decision that rests, not upon the sufficiency of the indictment alone, but upon extraneous facts. If an indictment is dismissed as a result of a stipulated fact or the showing of evidentiary facts outside the indictment, which facts would constitute a defense on the merits at trial, no appeal is available. See United States v. Findley, 439 F.2d 970 (CA1 1971).”

Clearly, the District Judge in the instant case relied upon matters outside the petition for an order to show cause and the order pursuant thereto. There can be no doubt that the District Judge relied upon the statement of the claims, the admissions and definitions of issues elicited from the Government during the course of the discovery proceedings.

For the reasons herein stated and on authority of Brewster we conclude that the order in question is not an appeal-able order. The appeal will be dismissed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Stephen Wade BLACK, Defendant-Appellant.
    No. 72-3179
    Summary Calendar.

    United States Court of Appeals. Fifth Circuit.
    April 11, 1973.

      Albert M. Horn, Atlanta, Ga., for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., Robert L. Smith, Asst. U. S. Atty., Atlanta', Ga., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

       Rule 18, 5th Cir. See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Stephen Wade Black appeals from his one count conviction for knowingly and intentionally possessing 32 pounds of marijuana in violation of 21 U.S.C. § 841 (a)(1), D.C., 344 F.Supp. 537. He contends that the search and seizure which yielded the marijuana introduced into evidence against him was illegal because of a constitutionally defective search warrant. We find this contention to be without merit and affirm.

While searching for a lost invoice, a Delta Airlines employee in San Diego observed several brick shaped packages lodged inside a crate containing a heavy wooden beam table. These packages emitted the odor of marijuana. The San Diego police were called and Officer Hamlin came to the airport where he likewise observed the packages. He determined that they contained marijuana and immediately relayed this information to officials of the Bureau of Narcotics and Dangerous Drugs in San Diego. Subsequently, the decision was made to send the table on to Atlanta, its intended destination. In the meantime, all of the foregoing information was communicated by telephone to Special Agent Goodowens of the Bureau of Narcotics and Dangerous Drugs in Atlanta. In reliance thereon he swore out a search warrant before a federal magistrate. When Black, the addressee of the shipment, arrived at the airport to pick it up, Goodowens observed the crate as described to him, executed the warrant and confiscated the bricks of marijuana which were later introduced into evidence against the defendant.

Black asserts that the search warrant was constitutionally defective because the supporting affidavit failed to allege specific underlying facts from which the magistrate could determine how Officer Hamlin in San Diego was able to conclude that the brick shaped packages were marijuana. Black suggests that there were only two possible ways for Hamlin to have made this finding, both of which would raise fourth amendment problems. He could have forced the crate open to gain access to the packages in which case his conclusion would be the fruit of a warrantless search; or he could have made his judgment by smelling the packages in which case it would be based on pure conjecture.

There is no dispute that a search warrant can be based on hearsay information, but where that is the case, the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) must be met. The magistrate must be informed of some of the underlying circumstances on which the informant’s conclusions were based and also some of the circumstances which lead the affiant to decide that the informant was reliable. If the Aguilar test is not met, yet the informant’s report is corroborated by independent sources, then under Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1968), a search warrant may still issue. The magistrate, however, must first determine that the informant’s report and the independent corroborative sources taken together result in information equally as trustworthy as that attainable by strict adherence to the Aguilar standard.

The report of the unidentified Delta Airlines employee clearly did not meet the second part of the Aguilar test. It was corroborated, however, by Officer Hamlin’s on-the-spot inspection of the packages. The affidavit indicates that he observed them directly and found them to contain marijuana. There is no basis in the record to conclude that his determination was based on conjecture or a warrantless intrusion into the crate. We think that the magistrate’s reliance on these facts to have been justified even though they were communicated across the continent, Brooks v. United States, 416 F.2d 1044, 1049 (5th Cir. 1969). We hold that there was ample cause for the issuance of the search warrant consistent with the Spinelli-Aguilar requirements.

Judgment affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellant, v. Agop KISMETOGLU, Defendant-Appellee.
    No. 72-1413.
    United States Court of Appeals, Ninth Circuit.
    March 5, 1973.

      Larry L. Dier, Asst. U. S. Atty. (argued), 'Frederick M. Brosio, Jr., Asst. U. S. Atty., William D. Keller, U. S. Atty., Los Angeles, Cal., for plaintiff-appellant.
    Robert N. Harris, Jr. (argued), Los Angeles, Cal., for defendant-appellee.
    Before BROWNING and GOODWIN, Circuit Judges, and PLUMMER, District Judge.

       Honorable Raymond E. Plummer, United States District Judge, District of Alaska, sitting by designation.

   PER CURIAM:

Relying on the court’s opinion in United States v. One 1967 Cadillac El Dorado, 453 F.2d 396 (9th Cir. 1971), a per curiam opinion was filed on October 30, 1972, in United States v. Kismetoglu, 468 F.2d 1386 (9th Cir. 1972), affirming the judgment of the district court in United States v. Kismetoglu, 350 F.Supp. 333 (C.D.Cal.1971). In doing so, this court held that in a criminal case where a judgment of acquittal had been ordered after a verdict of guilty by jury, the district court could enjoin the United States and its agents from filing a forfeiture action for an alleged violation of the custom laws.

Subsequently and after due consideration, an order was entered granting appellant’s motion for leave to file a petition for rehearing and recall mandate. This’ order also afforded appellee ten days in which to file a response to the petition to supplement his opposition thereto previously filed. No response has been filed.

Appellant’s petition for rehearing is based on a per curiam opinion of the United States Supreme Court, One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438, filed on December 11, 1972, 42 days after the filing of this court’s opinion in Kismetoglu, supra. In the Emerald Cut Stones case the Supreme Court granted certiorari to resolve a conflict among the Circuits as to whether a forfeiture is barred under the circumstances presented in this case. In doing so, the Supreme Court resolved the conflict adversely to this court’s opinion in United States v. One 1967 Cadillac El Dorado, supra. We are bound to follow the opinion of the Supreme Court.

Accordingly, the per curiam opinion filed October 30, 1972, in United States v. Kismetoglu, 468 F.2d 1386 (9th Cir. 1972), is hereby withdrawn.

The order of the district court entered October 22, 1971 [conditionally granting defendant-appellee’s motion for return of property and enjoining the agents of the United States from performing their functions under 19 U.S. C.A. §§ 1497 and 1592], is reversed, vacated and set aside.

It is so ordered.

      . Although incorporated in a judgment in a criminal proceeding, the injunction appealed from is civil in nature and the government’s • appeal is therefore timely. Fed.R.App.P. 4(a).