text:
    UNITED STATES of America, Appellee, v. Humberto FLORES, Appellant.
    No. 1077, Docket 74-1186.
    United States Court of Appeals, Second Circuit.
    Argued May 15, 1974.
    Decided Aug. 7, 1974.

      William Epstein, New York City (William J. Gallagher, The Legal Aid Society, New York City), for appellant.
    Steven Kimelman, Asst. U. S. Atty. (Edward John Boyd, Y, Acting U. S. Atty., for the E. D. N. Y., Paul B. Bergman, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.
    Before KAUFMAN, Chief Judge, and HAYS and OAKES, Circuit Judges.
   PER CURIAM:

On February 8, 1974, appellant was convicted of importing 2.2 kilograms of cocaine and of conspiracy to do the same in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 963. He appeals from that conviction on the basis that the district court improperly refused to dismiss his indictment pursuant to Rule 4 of the Plan for the United States District Court for the Eastern District of New York for Achieving Prompt Disposition of Criminal Cases (Plan). For the reasons which follow, we remand for further proceedings consistent with this opinion.

Most important to this case, and others of its ilk, is the chronology of events. On September 28, 1972, one Raimundo Canas was arrested upon arriving at Kennedy Airport from Chile in the possession of over two kilograms of cocaine. Informing the agents that he was to deliver the cocaine to his “contact” in the airport, he was allowed to enter the lobby. There appellant, who was with a companion, appeared to recognize Canas, but then spotted the sur-veilling agents and attempted to leave. He and his companion were arrested. On September 29 the three were arraigned, and appellant, who was unable to make the $150,000 bail, was held over. October 10 was set as the date of the preliminary hearing. Prior to October 10 it was determined by the office of the United States Attorney for the Eastern District of New York that, due to Canas’ refusal to testify against appellant, there was insufficient evidence to indict him at that time. On October 10, in light of this, the office agreed to a reduction of appellant’s bail to a $20,000 personal recognizance bond, which allowed appellant to get back on the street. Between this time and sometime in January, 1973, one agent was involved in making credit checks, telephone checks, and other investigative efforts in appellant’s case, but it was not until January, over three months from the initial and only interview of Canas, that the agent again contacted him. Recently sentenced to eight years for his part in the conspiracy, Canas still refused to cooperate. Finally, on February 23, 1973, four months and 27 days after appellant’s arrest, four months and 14 days after the office of the United States Attorney had determined there was insufficient evidence with which to go to the grand jury, and over a month after the last attempt to get Canas’ cooperation, the United States Attorney had the complaint dismissed.

The “investigation,” however, did not end. In April the agent talked again twice to Canas. By May 4, 1973, Canas’ cooperation was such that the Assistant United States Attorney handling the case wrote to Canas’ sentencing judge in support of Canas’ motion for a reduction of sentence, “[i]n light of the fact that Mr. Canas has recently cooperated with the United States . . . . ” It was not until June 19, however, that Canas actually appeared before the grand jury and an indictment against appellant was returned. A bench warrant was issued for appellant’s arrest, which was executed on June 28, 1973. While the Government claims it was ready to try appellant on three days’ notice thereafter, it did not get around to filing its Notice of Readiness until July 25, 1973 — which is the crucial date. See United States v. Pierro, 478 F.2d 386 (2d Cir. 1973).

Rule 4 of the Plan provides that the Government must be ready for trial six months “from the date of arrest, service of summons, detention or the filing of a complaint or a formal charge ., whichever is earliest.” See note 1 swpra. Here appellant was first arrested for this crime on September 28, 1972, but the Government did not file a Notice of Readiness until July 25, 1973 — almost ten months later. It was thus incumbent upon the Government to demonstrate that one of the tolling periods provided in Rule 5 of the Plan was applicable.

The Government contends, and we accept, that for the period after the dismissal of the complaint against appellant and prior to appellant’s indictment the clock should not run against it. During this period appellant was not subject to any of the disabilities associated with being under arrest, the subject of a complaint or indictment, or in the midst of a criminal prosecution. He was under no more jeopardy than any other citizen, and the fact that he might ■have been under investigation has no more effect after the dismissal on the running of the six-month period than it would have had before his arrest, that is, none. Even after elimination of this period from February 24, 1973, to June 18, 1973, after the dismissal but before the indictment, however, the Government is still faced with a period adding up to over six months during which it was not ready for trial.

The Government claims that because Canas refused to cooperate during a several month period, this time should be tolled according to Rule 5(c)(i), see note 2 supra, which provides for tolling during the period “evidence material to the government’s case is unavailable . ” We do not believe that the “unavailability” of evidence referred to applies to the present situation and thus this exemption is not applicable. In United States v. Rollins, 487 F.2d 409 (2d Cir. 1973), we disapproved a district court’s finding that a witness was unavailable because the Government could not produce him without prejudicing an ongoing investigation. In reaffirming the application of the common sense meaning of the term “unavailable,” we analogized whether the witness would be considered “available” for purposes of drawing negative inferences. Id. at 412. See generally Wigmore, Evidence §§ 1401-18 (3d ed. 1940). Here, as in Rollins, we feel certain Canas was “available” in this sense. In short, Canas was not “unavailable” to the Government; rather, he was simply not willing to tell the grand jury what the Government wanted him to tell. If a witness’s unwillingness to testify in and of itself were a ground for tolling the six-month period of the Plan, the Plan would be a dead letter.

The, Government also suggests that Canas’ refusal to cooperate somehow constitutes “exceptional circumstances” under Rule 5(h) of the Plan. The Government points to nothing exceptional about a convicted drug dealer refusing to cooperate with Government prosecutors, however, so that on these facts the claim is frivolous.

We are left then with an argument not made before us, namely that during the period June 19 to June 28, appellant may have been a fugitive whose absence or unavailability in a recognizable sense resulted in a delay which would toll the period pursuant to Rule 5(d). See note 2 supra. The record before us is not clear whether appellant was indeed absent (that is, according to the rule, whether his location was unknown) or unavailable (that is, his location was known but his presence could not be obtained by due diligence) so as to be a fugitive. It is, moreover, even less clear whether the nine day period between appellant’s indictment and second arrest resulted in any delay to the Government in the time it should have been “ready for trial.” If indeed appellant were absent or unavailable during that period, and if indeed the Government’s readiness to go to trial was delayed thereby, then that nine day period would be exempted from the period within which the Government had to be ready, putting the total period at just under six months. If, however, these conditions are not met, then the district court should dismiss the indictment against appellant with prejudice.

Reversed and remanded.

      . 4. All Cases: Trial Readiness and Effect of Non-Comi)lia.nce.

      In all cases the government must be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest. If the government is not ready for trial within such time, and if the defendant is charged only with non-capital offenses, the defendant may move in writing, on at least ten days’ notice to the government, for dismissal of the indictment. Any such motion shall be decided with utmost promptness. If it should appear that sufficient grounds existed for tolling any portion of the six-months period under one or more of the exceptions in Rule 5, the motion shall be denied, whether or not the government has previously requested a continuance. Otherwise the court shall enter an order dismissing the indictment with prejudice unless the court finds that the government’s neglect is excusable, in which event the dismissal shall not be effective if the government is ready to proceed to trial within ten days.

      . 5. Excluded Periods.

      In computing the time within which the government should be ready for trial under Rules 3 and 4, the following periods should be excluded:
      (a) The period of delay while proceedings concerning the defendant are pending, including but not limited to proceedings for the determination of competency and the period during which he is incompetent to stand trial, pre-trial motions, interlocutory appeals, trial of other charges, and the period during whicli such matters are sub judice.
      (b) Periods of delay resulting from a continuance granted by the District Court at the request of, or with the consent of, the defendant or his counsel, in writing or stated upon the record. The District Court shall grant such a continuance only if it is satisfied that postponement is in the interest of justice, taking into account the public interest in the prompt disposition of criminal charges. A defendant without counsel should not be deemed to have consented to a continuance unless he has been advised by the court of his rights under these rules and the effect of his consent.
      (c) The period of time during which:
      (i) evidence material to the government’s case is unavailable, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available within a reasonable period; or
      (ii) the prosecuting attorney is actively preparing the government’s case for trial and additional time is justified by exceptional circumstances of the case.
      (d) The period of delay resulting from the absence or unavailability of the defendant. A defendant should be considered absent whenever his location is unknown. A defendant should be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence.
      (e) A reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial has not run and there is good cause for not granting a severance. In all other cases the defendant should be granted a severance so that he may be tried within the time limits applicable to his case.
      (f) The period of delay resulting from detention of the defendant in another jurisdiction provided the prosecuting attorney has been diligent and has made reasonable efforts to obtain the presence of the defendant for trial.
      (g) The period during which the defendant is without counsel for reasons other than the failure of the court to provide counsel for an indigent defendant or the insistence of the defendant on proceeding without counsel.
      (h) Other period of delay occasioned by exceptional circumstances.

      . The district court instead found that for jmrposes of Rule 4 of the Plan appellant’s six-month period began with his indictment on June 19, 1973, and that the entire period before was expunged because of the dismissal of the original complaint. This cannot be. In Hilbert v. Dooling, 476 F.2d 355 (2d Cir. 1973) (en banc), this court decided with reference to its Rules, forerunners to those here, that a dismissal for failure to abide by the Rules was witli prejudice. This decision was but a reflection of the understanding that the Rules would stand for nothing if a dismissal for failure to comply with them would merely lead to reindictment. A similar situation is present here. If merely dismissing a complaint or indictment would expunge the time utilized before the dismissal in the determination of the six-month limit, the Plan would provide no incentive to increased efficiency and attention to delayed cases. Instead, as a case approached the six-month period it could be merely dismissed and then reopened. This would not only result in precisely the delays which the Plan attempts to end, but would also provide an incentive for devious behavior by Assistant United States Attorneys pressed with heavy case loads and an institutional disfavor with having cases dismissed. Accordingly, the six-month period runs under the Plan, as its words indicate, “from the date of arrest, service of summons, detention or the filing of a complaint or of a formal charge . . ., whichever is earliest.”

      . Although the burden of proof is on the Government to establish those times to be excluded from the six-month period, and failure so to prove in the first instance should be determinative, we remand for further hearings because the Plan was not established primarily to safeguard defendants’ rights. Rather the Plan, and the Second Circuit Rules before it, were to serve the public interest in the prompt adjudication of criminal cases. Thus, because it is not the defendant’s personal interest being defended by the Plan, but rather the public’s, whose interest is both in convicting criminals and in upholding the Plan, we feel it is not improper to give the Government a second opportunity to establish its compliance with the Plan.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Harry D. COMBS, Appellant, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Appellee.
    No. 74-1019.
    United States Court of Appeals, Fourth Circuit.
    Submitted May 17, 1974.
    Decided July 16, 1974.
    Franklin W. Kern, Charleston, W. Va., on brief for appellant.

      John A. Field, III, U. S. Atty., and Ray L. Hampton, II, Asst. U. S. Atty., on brief for appellee.
    Before CRAVEN, BUTZNER and RUSSELL, Circuit Judges.
   PER CURIAM:

Harry D. Combs filed an application for Social Security disability benefits in 1971. After a hearing, the administrative law judge held that he was disabled as of June 30, 1963, the date his insured status expired. The Appeals Council took up the case on its own motion and denied benefits. Combs brought an action for statutory review in the district court but lost on the Secretary’s motion for summary judgment.

Combs, 42 years old at the time of the hearing, has an eighth-grade education. His work experience is limited to manual labor — picking slate on a coal tipple, driving trucks, and some railroad work. The medical evidence established that Combs had suffered before June 1963: (1) a fracture of the left wrist, 1948, with a residual twisting deformity; (2) a gunshot wound of the right thigh, 1951, with complications that required neurological surgery, leaving Combs with “post-traumatic reflex sympathetic dystrophy” of the right foot; (3) a compression fracture of the 12th dorsal vertebra, disagnosed as “old” in 1957. Combs testified that he quit his job as a truck driver in 1959 because of pain in his back and left wrist and because pain in his leg prevented him from sitting or standing for long periods. After 1969 he tried several jobs but was unable to work regularly because of pain. He has not worked at.all since 1959. To corroborate his testimony, Combs presented a neighbor who testified that in the spring of 1963 Combs was unable to work. A vocational expert testified that, with the disabilities Combs said he suffered in 1963, there would have been no jobs in the national economy that he could perform.

The admininstrative law judge made an explicit finding that Combs was “a sincere witness in his own behalf,” App. 13, accepted his testimony of disability, and held that he was entitled to benefits. The Appeals Council reversed the hearing judge’s decision, stating:

It is the opinion of the Appeals Council that the claimant, during the time in question, could have been engaged in his usual work as a truckdriver or other work similar to that performed by an unimpaired individual.

App. 7. The district court concluded that this decision was supported by substantial evidence. We hold that it is not, and reverse.

Of the four elements of proof relevant to disability, Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir. 1962), the record contains uncontradicted evidence on three. There are objective medical facts showing existence of the three injuries before 1963; claimant’s subjective description of his pain and disability, corroborated by his neighbor; and evidence of claimant’s educational and work background. The fourth element we identified in Underwood v. Ribicoff is missing: the record contains no medical opinions on “subsidiary questions of fact,” i. e., claimant’s ability to work in 1963. Such opinion evidence, however, is not the sole determinant of disbility, 20 C.F.R. § 404.1526, and we have held that subjective evidence is entitled to great weight, “especially where such evidence is uncontradicted in the record,” Underwood v. Ribicoff, supra, at 852. See also Hayes v. Gardner, 376 F.2d 517 (4th Cir. 1967).

In this case the Appeals Council ignored the subjective evidence entirely. As to the wrist fracture, it stated: “Both his return to work and the absence of further mention in the record are persuasive indications that the injury did not result in serious functional limitations.” As to the gunshot wound, it said: “There is no indication that following this procedure, and the healing of the wound, the claimant had further complications or difficulty with his leg. He, in fact, again returned to work and had substantial earnings for several years thereafter.” And, with regard to the back injury, it said: “There is no specific information concerning this disorder and it did not prevent the claimant from working thereafter.” These statements are apparently the sole premise for the Appeals Council’s final conclusion that Combs was not disabled in 1963.

This conclusion is not supported by substantial evidence. First, the inferences that the council drew from the absence of medical records and Combs’ ability to work in 1949 and 1951 are insubstantial. They do not relate directly to Combs’ condition in 1963, they are considerably weakened by the fact that Combs did not keep a steady job after 1959, and they do not take account of the combined effect of the three injuries. Lackey v. Celebrezze, 349 F.2d 76 (4th Cir. 1965). Second, the inferences are contrary to Combs’ testimony about his pain and disability. The Appeals Council may be entitled to disbelieve the claimant’s testimony, even though uncontradicted in the record, but we think it must make a specific holding on the point when the hearing judge has found the claimant’s testimony credible. See Selewich v. Finch, 312 F.Supp. 191, 195 (D.Mass.1969); Egan v. Gardner, 277 F.Supp. 929 (N.D.Cal.1968); cf. Universal Camera Corp. v. NLRB, 340 U.S. 474, 492-497, 71 S.Ct. 451, 95 L.Ed. 456 (1951). In this case the Appeals Council did not even acknowledge the claimant’s testimony; its summary of the evidence omits all mention of Combs’ description of his disability. The Secretary must consider this evidence. DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972); Bittel v. Richardson, 441 F.2d 1193 (3d Cir. 1971); Moore v. Finch, 418 F.2d 1224 (4th Cir. 1969); Underwood v. Ribicoff, supra.

Accordingly, we reverse the district court and remand with instructions to reverse the Secretary’s denial of benefits and remand for further administrative proceedings.

Reversed and remanded.

      . All of the forms Combs filed prior to the administrative hearing indicated that the back fracture occurred at the same time as the wrist fracture, although there was some uncertainty about the date (1948, as opposed to 1949 or 1950). At the hearing, the administrative law judge apparently misread the medical report to indicate that the fracture occurred in 1957 rather than that it was diagnosed then and this misapprehension crept into the hearing when he asked Combs: “March 12, 1957, I believe, this happened, according to Exhibit 24, isn’t that correct — that you had a fracture of your spine?” Combs answered, “Yes, sir, my spine.” App. 40. The error was repeated by Combs’ attorney at App. 50, and it may have affected the administrative law judge’s decision, App. 12. The Appeals Council did not attempt to fix a date for the spine injury, but proceeded on the medical report’s statement that it was “old” in 1957.

      . The regulations that the Secretary has promulgated pursuant to 42 U.S.C. §§ 405(a) and 423(d)(5) may be read to require the claimant to furnish medical opinion evidence as part of his burden of proof. In this ease the Appeals Council did not mention or rely on these regulations. Consequently we do not know how the Secretary interprets them. Moreover, we are unwilling to affirm the Secretary’s decision on a basis not mentioned in the administrative record. See SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). The pertinent regulations are 20 C.FJEt. §§ 404.1523 and 404.1524(c).


author: EDWARDS, Circuit Judge. WEICK, Circuit Judge

text:
    A. K. P. COAL COMPANY et al., Petitioners, v. Rogers C. B. MORTON, Secretary of the Interior, et al., Respondents.
    No. 74-1568.
    United States Court of Appeals, Sixth Circuit.
    Aug. 20, 1974.

      Bert T. Combs, Tarrant, Combs, Blackwell & Bullitt, Louisville, Ky., John L. Kilcullen, Webster & Kilcullen, Washington, D. C., for petitioners.
    Richard V. Backley, Dept, of the Interior, Washington, D. C., Stephen Eil-perin, Michael Kimmel (argued), Department of Justice, Washington, D. C., for respondents.
   Motion for Stay of Enforcement.

Before WEICK, EDWARDS and PECK, Circuit Judges.

EDWARDS, Circuit Judge.

Petitioners in this case have filed a “Motion for Stay of Enforcement of Mine Closure Orders” under Rule 18 of the Federal Rules of Appellate Procedure. The motion seeks an order of this court requiring respondent, Rogers C. B. Morton, Secretary of the United States Department of the Interior, to stay enforcement of any withdrawal orders issued against petitioners’ mines. The stay is sought pending review on the merits of a petition for review of respondents’ denial of a petition for modification of the interim mandatory safety standards contained in Section 305(a) (2), 30 U.S.C. § 865(a)(2) (1970), of the Federal Coal Mine Health and Safety Act of 1969, as applied to petitioners’ mines.

This petition was filed March 18, 1974, under Section 301(c) of the Act, 30 U.S.C. § 861(c) (1970). It was ordered dismissed by an administrative law judge April 12, 1974, which dismissal was affirmed by the Board of Mine Operations Appeals of the United States Department of the Interior April 24, 1974. Both the Board and the administrative law judge dismissed the petition as a matter of law, holding that the petition “failed to state a cause of action upon which a modification of a mandatory safety standard can be granted.”

The Department clearly regarded the petition as seeking a waiver of Section 305(a)(2), which provides in applicable part:

“(2) Effective four years after the operative date,of this subchapter, all electric face equipment, other than equipment referred to in paragraph (1) (B) of this subsection, which is taken into or used inby the last open crosscut of any coal mine which is operated entirely in coal seams located above the watertable and which has not been classified under any provision of law as a gassy mine prior to the operative date of this subehapter and in which one or more openings were made prior to December 30, 1969, shall be permissible except, that any operator of such mine who is unable to comply with the provisions of this paragraph on such effective date may file with the Panel an application for a permit for noncompliance ninety days prior to such date. If the Panel determines, after notice to all interested persons and an opportunity for a public hearing under section 804 of this title, that such application satisfies the provisions of paragraph (10) of this subsection and that such operator, despite his diligent efforts, will be unable to comply with such provisions, the Panel may issue to such operator such a permit. Such a permit shall entitle the permittee to an additional extension of time to comply with the provisions of this paragraph of not to exceed twenty-four months, as determined by the Panel, from such effective date.” 30 U.S.C. § 865(a) (2) (1970).

The position of the administrative law judge and of the Board of Appeals was that this section is a mandatory safety requirement which could not legally be waived by the Secretary. Our review of the statute convinces us that this position is correct as a matter of law. See Reliable Coal Co. v. Morton, 478 F.2d 257 (4th Cir. 1973). Section 305(a)(2) is designated by Congress as an “interim mandatory safety standard” (emphasis added). Section 305 (a) (2) as adopted by Congress contained a four-year delayed effective date in order to allow mine owners like petitioners to secure the equipment necessary for compliance. We note that this petition was filed just 12 days before the expiration of the four-year grace period allowed by Congress.

Petitioners also sought a measure of relief pertaining to the methane gas detection device specified in Section 303 (Í) of the Act. It is their claim that there is a system for more effective detection of methane gas than that specified by Section 303(Í). As the administrative law judge noted, however:

“In order to obtain a modification the petitioner has to present either an available alternative method or proof that the application of the mandatory safety standard will result in a diminution of safety to the miners. The Petition for Modification in this case does not allege either of these two necessary points.
“Section 301(e) compels the present existence of an alternative method. The method laid out in the Petition in question does not presently have MESA approval and is not permissible equipment.

Like the administrative law judge and the Board, we conclude that on the showing made, the petition must be denied as a matter of law, and, therefore, that no evidentiary hearing was required for this conclusion.

For the reasons stated above, we find that there is no “substantial likelihood” of petitioner “prevail [ing] on the merits.” 30 U.S.C. § 816(c)(1)(B) (1970).

At oral argument of this motion counsel for the government stated without any contradiction that the government had no intention of issuing orders to close any mines where applications for delay to acquire permissible equipment had been filed, along with a showing that such permissible equipment was on order. The authority for such delay is contained in § 305(a)(2) of the Act, 30 U.S.C. § 865(a)(2) (1970).

The motion for stay pending review is denied.

WEICK, Circuit Judge

(dissenting).

I would grant the stay and assign the appeal for an expedited hearing at our October, 1974 Session.

Fifty-one mining companies petitioned the Secretary, under the provisions of Section 301(c) of the Act, to modify the interim mandatory safety standards of the Act contained in Section 305(a)(2).

Section 301(c) of the Act provides as follows:

(c) Upon petition by the operator or the representative of miners, the Secretary may modify the application of any mandatory safety standard to a mine if the Secretary determines that an alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard, or that the application of such standard to such mine will result in a diminution of safety to the miners in such mine. Upon receipt of such petition the Secretary shall publish notice thereof and give notice to the operator or the representative of miners in the affected mine, as appropriate, and shall cause such investigation to be made as he deems appropriate. Such investigation shall provide an opportunity for a public hearing, at the request of such operator or representative or other interested party, to enable the operator and the representative of miners in such mine or other interested party to present information relating to the modification of such standard. The Secretary shall issue a decision incorporating his findings of fact therein, and send a copy thereof to the operator or the representative of the miners, as appropriate. Any such hearing shall be of record and shall be subject to section 554 of Title 5. 30 U.S.C. § 861(c).

The Secretary gave the required notice of the filing of the petition, but he did not provide an opportunity for a public hearing to enable the mine operators to present information relating to the modification of the standard.

An Administrative Judge summarily granted a motion to dismiss without taking any evidence; he adopted no findings of fact. His order was affirmed in an administrative appeal.

In Reliable Coal Corp. v. Morton, 478 F.2d 257 (4th Cir. 1973), relied on by the Secretary, the hearing examiner permitted evidence to be offered at the hearing but made no factual findings.

In my opinion, before resorting to the drastic closing of all fifty-one of these mines, the Secretary was required to conform to the procedural requirements of the Act, the regulations adopted pursuant thereto, and the requirements of the Administrative Procedure Act. These requirements were designed to afford due process of law in administrative proceedings.

There is a substantial question whether the Secretary complied with the procedural requirements of the Act so as to afford due process of law to the mine owners. This substantial question should be explored in depth in this appeal and the mines ought not to be closed until the mine owners have had an opportunity to be heard and to offer evidence in support of their petition.

      . Affidavit of Joseph J. Seaman, Chief, Approval and Testing Group, MESA, Exhibit A, MESA’s Motion to Dismiss Petition or in the alternative, for Summary Decision.”

      . See Subchapter III — Interim Mandatory Safety Standards for Underground Coal Mines. 30 U.S.C. § 801 et seq.


author: MARIS, Circuit Judge.

text:
    Philip B. LINDY t/a Fountain View Apts., a Pennsylvania Limited Partnership, Appellant, v. James LYNN, Secretary of Housing and Urban Development, et al.
    No. 73-2056.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) June 27, 1974
    Decided July 15, 1974.
    Rehearing Denied Oct. 7, 1974.
    Victor Wright, Fox, Rothschild, O’Brien & Frankel, Philadelphia, Pa., for appellant.
    John K. Villa, Dept, of Justice, Irving Jaffe, Acting Asst. Atty. Gen., Washington, D. C., Victor L. Schwartz, Asst. U. S. Atty., Philadelphia, Pa., for appellees Lynn, Kingman, LaSala and United States.
    H. Kenneth Tull, Wright, Thistle & Gibbons, Philadelphia, Pa., for appellee Frankford Trust Co.
    Before MARIS, HUNTER and GARTH, Circuit Judges.
   OPINION OF THE COURT

MARIS, Circuit Judge.

This is an appeal from the judgment of the district court dismissing the plaintiff’s cause of action on the merits. Plaintiff, Philip B. Lindy, trading as Fountain View Apartments, had obtained from Metropolitan Federal Savings and Loan Association a mortgage loan to finance the construction of a large apartment building in Philadelphia. The mortgage loan was insured by the Federal Housing Administration. Pursuant to FHA regulations the mortgagee required the plaintiff to deposit with it the sums of $69,308.00 as working capital and $103,962.00 as a mortgage discount fee for which sums the mortgagee issued a Mortgagee’s Certificate in the form prescribed by FHA. The additional sum of $21,440.00 was deposited by the plaintiff with the mortgagee pursuant to an Escrow Agreement, also in the form prescribed by FHA. These deposits were in the form of two letters of credit issued by Frankford Trust Company, of Philadelphia, one of the defendants. The plaintiff was unable to commence construction of the apartment project and defaulted on the mortgage, of which default the acting Area Director of the Department of Housing and Urban Development, one of the defendants, was notified. The assistant general counsel of that Department thereupon notified the mortgagee that its insurance claim would be debited with $194,710.00, the amount of the two letters of credit which it held.

The plaintiff thereafter filed the present complaint against the Secretary of Housing and Urban Development, the acting Federal Housing Commissioner, the acting Area Director of the Department of Housing and Urban Development, the federal defendants, and Frankford Trust Company, alleging that by the terms of the letters of credit and the provisions of the Mortgagee’s Certificate and Escrow Agreement the letters of credit were issued for limited purposes which did not include the right of the Federal Housing Administration to debit or set off the amounts deposited against the mortgage insurance claim of the mortgagee. The complaint sought injunctive relief against any action by the defendants to that end. Upon consideration of a motion by the federal defendants for dismissal, the district court concluded that the documents involved, properly construed, did not support the plaintiff’s contentions and it entered a judgment dismissing the plaintiff’s cause of action. The appeal now before us followed.

We think that the district court should have dismissed the complaint for want of jurisdiction of its subject matter. The complaint alleges that jurisdiction is founded upon 28 U.S.C. § 1331(a), which grants jurisdiction where the matter in controversy arises under the Constitution, laws, or treaties of the United States, 28 U.S.C. § 1346(a)(2), the Tucker Act, which grants jurisdiction of civil actions against the United States, not exceeding $10,000.00 in amount, founded, inter alia, upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, 5 U.S.C. §§ 701-706, which grant aggrieved persons the right to the review of agency action by any applicable form of legal action in a court of competent jurisdiction, and 12 U.S.C. § 1702, which provides that the Secretary of Housing and Urban Development may be sued in his official capacity in any court of competent jurisdiction, State or Federal. We are satisfied that none of these statutes supports the jurisdiction claimed for the district court by the plaintiff in the present case.

An action arises under the laws of the United States if and only if the complaint seeks a remedy expressly granted by a federal law or if it requires the construction of a federal statute or a distinctive policy of a federal statute requires the application of federal legal principles for its disposition. T. B. Harms Company v. Eliscu, 2 Cir. 1964, 339 F.2d 823, 828; McFaddin Express, Incorporated v. Adley Corporation, 2 Cir. 1965, 346 F.2d 424, 426. If, on the other hand, the action is not expressly authorized by federal law, does not require the construction of a federal statute and is not required by some distinctive policy of a federal statute to be determined by the application of federal legal principles, it does not arise under the laws of the United States even if federal law furnishes some necessary ingredient of the claim. Moreover, the fact that a contract is subject to federal regulation does not, in itself, demonstrate that Congress meant that all aspects of its performance or nonperformance are to be governed by federal law rather than by the state law applicable to similar contracts in businesses not under federal regulation. Ivy Broadcasting Co. v. American Tel. & Tel. Co., 2 Cir. 1968, 391 F.2d 486, 490, 493. Here the dispute between the parties is purely one as to the correct interpretation and effect of certain contractual documents, an ordinary contract dispute to be determined by the application of the principles of Pennsylvania contract law. The fact that these documents were subject to the regulations of the FHA is not significant, since we know of no federal statutory policy which would require federal law to determine their operation and effect. The case is, therefore, not one arising under the laws of the United States.

Nor is 28 U.S.C. § 1346(a)(2), the Tucker Act, available to support the district court’s jurisdiction. For that section deals only with claims for monetary damages and does not confer upon the district courts jurisdiction to grant equitable relief unless it is in aid of a claim against the United States for a money judgment. Clay v. United States, 1954, 93 U.S.App.D.C. 119, 210 F.2d 686; Lynn v. United States, 5 Cir. 1940, 110 F.2d 586. Here there is no such monetary claim. The plaintiff is not aided by 5 U.S.C. §§ 701-706, which authorizes the judicial review of administrative agency orders, since no such order is here sought to be reviewed. Moreover, § 703 requires that the reviewing court must be one which is otherwise of competent jurisdiction. Getty Oil Co. (Eastern Operations) Inc. v. Ruckelshaus, 3 Cir. 1972, 467 F.2d 349; Pan Am World Airways, Inc. v. Civil Aeronautics Board, D.C.Cir.1967, 392 F.2d 483. The same is true of 12 U.S.C. § 1702, which makes the Secretary sua-ble in his official capacity in a court which is otherwise of competent jurisdiction. Here it is clear that the district court is not otherwise of competent jurisdiction to entertain this lawsuit.

The judgment of the district court will be vacated and the cause remanded with directions to dismiss the complaint for want of jurisdiction.


author: WEBSTER, Circuit Judge.

text:
    ROCKY FORD MOVING VANS, INC., Appellee, v. UNITED STATES of America, Appellant.
    No. 73-1808.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 13, 1974.
    Decided Aug. 23, 1974.

      John K. Villa, Atty., U. S. Dept, of Justice, Washington, D. C., for appellant.
    Vincent Foster, Jr., Little Rock, Ark., for appellee.
    Before VOGEL, Senior Circuit Judge, and GIBSON and WEBSTER, Circuit Judges.
   WEBSTER, Circuit Judge.

This case arises out of a contract entered into by the United States and Rocky Ford Moving Vans, Inc. (Rocky •Ford) for the interstate shipment of personal property belonging to a member of the Armed Services. Briefly stated, the facts reveal that Rocky Ford, an interstate carrier of household goods, agreed to move from Arkansas to Indiana the personal property of one Gordon C. Greider, a Captain in the United States Air Force. The goods, actually valued at $15,081.42, were released to Rocky Ford under a bill of lading signed by Captain Greider at a value of 60 cents per pound or a total of $4,308.00. The contract of carriage between the government and Rocky Ford forbade storage of the goods shipped thereunder in any warehouse which had not received the approval of the Military Traffic Management and Terminal Service (MTMTS).

Rocky Ford instructed its agent, Charlie Diffee, d/b/a Charlie Diffee Moving Company, to pick up Greider’s belongings at Little Rock Air Force Base in Jacksonville and to hold the shipment until the arrival of a Rocky Ford truck. Diffee did so on December 16, 1969, but, during a heavy rain on the following morning, he moved the goods to a nearby warehouse. While stored in that warehouse, which was not one approved by the MTMTS, Greider’s personal property was totally destroyed by fire.

In a suit brought by Rocky Ford against the United States to recover for carriage of personal property of military personnel, the Government counterclaimed for the actual value of the goods of Greider destroyed by fire. The District Court held that the Government’s counterclaim for damages on behalf of Greider was limited by the contract to the release value of 60 cents per pound, or $4,308.00 . Having carefully studied Judge Eisele’s soundly reasoned unpublished opinion as well as the eounterar-guments presented by appellant, the United States, we affirm.

As Judge Bisele did below, we rely primarily upon the policy underlying the Carmack Amendment to the Act to Regulate Commerce, 49 U.S.C. § 20(11). That legislation, which imposes upon the initial or the delivering carrier full liability for any actual loss incurred while in interstate transit, contains the following proviso:

■x- -x- * That the provisions hereof respecting liability for full actual loss, damage, or injury, notwithstanding any limitation of liability or recovery or representation or agreement or release as to value, and declaring any such limitation to be unlawful and void, shall not apply, first, to baggage carried on passenger trains or boats, or trains or boats carrying passengers ; second, to property, except ordinary livestock, received for transportation concerning which the carrier shall have been or shall be expressly authorized or required by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property, in which case such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released, and shall not, so far as relates to values, be held to be a violation' of section 10 of this title -X -X- -X-

The Carmack Amendment thus expressly recognizes the right of a shipper and carrier, to establish an agreed value of the goods to be shipped which limits the carrier’s liability and permits a shipper thereby to benefit from a lower rate. Strickland Transportation Co. v. United States, 334 F.2d 172 (5th Cir. 1964). In adopting the Carmack Amendment, Congress intended to impose a single uniform federal rule upon the obligations of carriers operating in interstate commerce. New York, New Haven & Hartford R. R. Co. v. Nothnagle, 346 U.S. 128, 73 S.Ct. 986, 97 L.Ed. 1500 (1953); Atchison, Topeka & Santa Fe Ry. v. Harold, 241 U.S. 371, 36 S.Ct. 665, 60 L.Ed. 1050 (1916); Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314 (1913). Such statutory provisions supercede “the diverse requirements of state legislation and decisions”, Southern Ry. v. Prescott, 240 U.S. 632, 639-640, 36 S.Ct. 469, 472, 60 L.Ed. 836 (1916), and render invalid all “agreement [s] in derogation of them * * *. Southwestern Sugar & Molasses Co., Inc. v. River Terminals Corp., 360 U.S. 411, 420 n. 9, 79 S.Ct. 1210, 3 L.Ed.2d 1334 (1959).

Appellant has attempted to circumvent the result dictated by the Carmack Amendment' by invoking the “material deviation” doctrine applicable in admiralty cases. See, e. g., The Sarnia, 278 F. 459 (2d Cir. 1921), cert. denied, 258 U.S. 625, 42 S.Ct. 382, 66 L.Ed. 797 (1922). Under that doctrine, a contractual limitation of liability will not restrict the shipper’s recovery where the carrier has breached a material or essential provision of the underlying agreement, for such a deviation arguably represents a complete failure of consideration and compels rescission of the entire carriage contract. The Government’s position is that storage in an approved warehouse was a quid pro quo or a fundamental part of its bargain with Rocky Ford, inserted in the contract in exchange for the limited value declaration. While the Amendment itself is silent with respect to “material deviations”, we agree with Judge Eisele that that admiralty law doctrine has no application in the context of regulated interstate commerce, which is governed by the overriding federal policy of uniformity. Lichten v. Eastern Airlines, Inc., 189 F.2d 939 (2d Cir. 1951); Minneapolis Society of Fine Arts v. Railway Express Agency, Inc., 213 F.Supp. 129 (D.Minn.1963).

Nor do we find merit, under the facts in this case, in the Government’s attempted distinction between willful breaches of carriage contracts and those which are merely negligent. The United States Supreme Court has described the words of the Carmack Amendment as “comprehensive enough to embrace all damages resulting from any failure to discharge a carrier’s duty with respect to any part of the transportation to the agreed destination.” Southeastern Express Co. v. Pastime Amusement Co., 299 U.S. 28, 29, 57 S.Ct. 73, 74, 81 L.Ed. 20 (1936). This is not a case where the carrier has purposefully converted the entrusted property for its own use or gain, see Glickfeld v. Howard Van Lines, Inc., 213 F.2d 723 (9th Cir. 1954), but rather one in which the carrier placed the goods in storage simply because “it was raining that morning like the devil and * * * [the truck] was sitting by the front of the warehouse.” See also Mitchell v. Union Pacific R. R. Co., 188 F.Supp. 869 (S.D.Cal.1960) (in absence of fraud, willful misconduct of carrier’s employees does not vitiate value declaration). In any event, Diffee did not willfully ignite the property in question.

Finally, we observe that the bill of lading prepared by Diffee for Rocky Ford contained a clear notation of the 60 cents-per-pound release value directly above the line on which Captain Greider signed his name. At trial Charlie Diffee testified that that portion of the bill of lading afforded Captain Greider the choice of accepting the rate represented by the 60 cents-per-pound release value or of purchasing additional insurance for his property by paying an extra premium therefor. William S. Hatchell, sales manager for Rocky Ford, testified that an extra insurance or release valuation charge is assessed whenever the shipper elects to release his goods at a lump sum value rather than at the standard value of 60 cents per pound per article. Under the Carmack Amendment, where the shipper has been given such an option and has elected to release his goods at the standard value in exchange for a lower rate, his recovery in the event of loss will be limited by the release value chosen. Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314 (1913); Sorensen-Christian Industries, Inc. v. Railway Express Agency, Inc., 434 F.2d 867 (4th Cir. 1970); cf. New York, New Haven & Hartford R. R. Co. v. Nothnagle, 346 U.S. 128, 73 S.Ct. 986, 97 L.Ed. 1500 (1953); Chandler v. Aero Mayflower Transit Co., 374 F.2d 129 (4th Cir. 1967).

We conclude that these facts together with the rules of law and legislative policies discussed above compel affirmance of the decision of the District Court.

      . Evidence in the record indicates that to meet the approval of the Department of Defense, a warehouse must be protected by an approved sprinkler system, or by an approved fire detection and reporting system, or it must have a fire contents rate of not more than $.60 per $100 valuation of goods stored annually. In all cases, an approved warehouse must have available a responsive local fire department and a water supply adequate for firefighting purposes.

      . 28 U.S.C. § 1346 provides in part that:
      (a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:
      (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States.

      . Honorable Garnett Thomas Eisele, Eastern District of Arkansas.

      . Third-party claims by Rocky Ford and the United States against Diffee were dismissed by the District Court and are not in issue here.

      . The Government interprets the approved-warehouse clause as a specific risk-reducing provision, a violation of which arguably upsets the carefully negotiated bargain. However, there is nothing in the record to suggest that the government paid anything in addition to the regular rate for the privilege of approving the warehouses to be used by the carrier. In this respect this case must be distinguished from those in which the court found a condition to be supported by independent consideration. See Watson Bros. Transportation Co. v. Feinberg Kosher Sausage Co., 193 F.2d 283 (8th Cir. 1951); Johnson v. Bekins Moving & Storage Co., 86 Idaho 569, 389 P.2d 109 (1963), cert. denied, 379 U.S. 913, 85 S.Ct. 257, 13 L.Ed.2d 184 (1964).

      . Diffee offered this explanation in a deposition taken by counsel for plaintiff, Rocky Ford, on July 28, 1972.

      . In addition, the Government Rate Tender I.C.C. No. 1-V, accepted by the MTMTS to govern all government shipments in the absence of an individual tender, provides that all shipments moving on government bills of lading are deemed released at a value of 60 cents per pound per article unless otherwise specified on the bill. The shipment in question was released under both the standard bill of lading prepared by Diffee and a United States Government bill of lading.


author: LUCAS, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert James ANDRINO, Defendant-Appellant.
    Nos. 72-1890, 72-1891.
    United States Court of Appeals, Ninth Circuit.
    July 10, 1974.

      John J. Flynn (argued), of Flynn, Kimerer, Thinnes & Galbraith, Phoenix, Ariz., for defendant-appellant.
    Robert M. Carney, Special Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

      Before BARNES and HUFSTEDLER, Circuit Judges, and LUCAS, District Judge.

       The Honorable Malcolm M. Lucas, United States District Judge for the Central District of California, sitting by designation.

   LUCAS, District Judge:

These appeals are from Andrino’s respective criminal convictions on three counts of violating the extortionate credit transactions statute, 18 U.S.C. § 891 et seq. (Title II of the Consumer Credit Protection Act, 82 Stat. 159.) Andrino was indicted twice, on two counts each, for violation of 18 U.S.C. § 894, collection of extensions of credit by extortionate means. The cases were consolidated for trial. The jury returned guilty verdicts as to both counts of the first indictment, and a guilty verdict as to the second count of the second indictment.

The cases concern three separate occasions involving Andrino and various persons.

The “Sbrocca incident”

On October 18, 1969, Romano Sbrocca, proprietor of a dry cleaning business in Phoenix, visited Andrino’s home in Paradise Valley, Arizona. The motive for the visit is unclear. Sbrocca apparently went by implied invitation from Andri-no, one of his patrons. Sbrocca became involved in a gin rummy game with An-drino and his companion and lost $600.-00. Sbrocca did not sign an evidence of the debt, nor did Andrino request him to pay the debt. The following day Andri-no appeared at Sbrocca’s place of business and demanded payment. Sbrocca refused, and Andrino became angry and left. That evening, while driving his panel truck, Sbrocca was struck from behind by an automobile which unsuccessfully attempted to force him off the road. Sbrocca testified that the driver appeared to be Andrino, accompanied by another man. The incident was corroborated by a police officer who filled out a report at the scene. The next day, An-drino called Sbrocca on the phone, and, utilizing abusive language, once again demanded payment of the debt. When Sbrocca accused him of the side-swiping incident on the previous night, Andrino laughed and made no effort to deny his involvement. After this conversation, two very large men appeared at Sbroc-ca’s establishment and demanded payment of the debt. Sbrocca refused their demands, and they. left. He then received a second phone call from Andrino. After that call, the men reappeared and remained in Sbrocca’s parking lot. Sbrocca became upset, wrote a check made out to Andrino, and delivered it to the two men. Sbrocca testified that the reason he made payment was because he felt “that $600.00 wasn’t worth any fear at all or wasn’t worth jeopardizing anything else.”

The “Bourassa incident”

In September 1970, Andrino, accompanied by Attiia DeAgh, approached Richard Bourassa, a salesman in a Phoenix furniture store, with an inquiry as to the possibility of redecorating his home. On or about September 17, 1970, Bour-assa visited Andrino’s home for the purpose of an appraisal, and he was induced to play a game of “Filipino Rummy.” Bourassa lost $1,189.00 to Andrino. He wrote an I.O.U. for that amount and left. The next day Andrino called Bour-assa to tell him that he would visit him soon to collect the debt. Bourassa reported the incident to his manager and called the Phoenix police. He also made arrangements for temporary relocation of his family. Late that afternoon, An-drino arrived at the furniture store. Bourassa refused to pay the debt, claiming illegality, to which Andrino replied that he had ways of enforcing such obligations, suggesting that Bourassa knew well what he meant. Andrino then stated: "You do have a wife and children.” Andrino also suggested that he would inform Bourassa’s employer of the debt. Bourassa agreed to approach his employer with Andrino, but the latter refused. Andrino represented that he would settle for $50.00. Bourassa then withdrew $50.00 from the cash register, and handed it to Andrino, who, with a sleight of hand, managed to retain the note while accepting the money. Andrino then demanded to know when the balance would be paid. This entire sequence of events was witnessed by Bourassa’s manager, and by a plain-clothes man from the Phoenix police.

The “Morrison incident”

In September 1970, Gerald Morrison, seeking to place a bet, was put into contact with a bookmaker named “Bobby” by George Giordano. (“Bobby” was subsequently identified as Andrino.) Morrison lost $1,100.00 on the bet. Giordano contacted Morrison for collection of the debt, but Morrison refused to pay it. Andrino called Morrison twice, the first time threatening him that if he did not pay “he would tear [his] head off.” Subsequently, Morrison called An-drino to arrange for a meeting place in order to pay $500.00 of the debt. Morrison was met by Giordano at the rendezvous, a local cocktail lounge. Giordano introduced him to Walter Baronick (who was indicted along with Andrino, but was given immunity to testify at the trial). The debt was discussed among the three, in the course of which discussion Baronick struck Morrison several times in the face. (Baronick later testified that he was to be paid “two and a half and I only got a hundred.”) Morrison then settled the debt with Giordano, and Baronick received his fee from Giordano.

Issues on Appeal

The following summarize the questions of law presented on appeal.

(1) Whether Congress intended the application of 18 U.S.C. § 894 to be restricted only to loan sharking activities by elements of organized crime, thus making its application to Andri-no’s activities an unconstitutional broadening of the intended scope of the statute;
(2) Whether sufficient evidence was •presented to support the verdicts reached by the jury that Andrino was guilty as charged on three of the four counts; and
(3) Whether the consolidation of the two cases for trial by a single jury deprived appellant’s rights to a fair trial under the Sixth Amendment.

Discussion of Law

The express language of the statute in question enervates Andrino’s position on the first issue. Section 894(a) provides, inter alia, that

[w]hoever knowingly participates in any way, or conspires to do so, in the use of any extortionate means
(1) to collect or attempt to collect any extension of credit (emphasis added)

shall be subject to the penalties provided therein. The definitions of those extensions of credit provided in 18 U.S.C. § 891 are equally broad in scope and impact:

(1) To extend credit means to make or renew any loan, or to enter into any agreement, tacit or express, whereby the repayment or satisfaction of any debt or claim, whether acknowledged or disputed, valid or invalid, and however arising, may or will be deferred. (Emphasis added).

Congress defined “an extortionate extension of credit” as

any extension of credit with respect to which it is the understanding of the creditor and the debtor at the time it is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person. 18 U.S.C. § 891(6).

Congress defined “an extortionate means” as

any means which involves the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any person. 18 U.S.C. § 891(7).

The broad sweep of the extortionate credit statute also has firm foundations in the legislative history of the law. The congressional language in the conference report on the Senate bill (eventually passed in lieu of the House bill) is expansive, not restrictive:

The full utility of chapter 42 as a weapon in the war on organized crime obviously cannot be assessed until it has been tested in battle. . . . [I]t is not, and is not intended to be, a Federal usury law, nor does it have anything to do with interest rates as such. It is, rather, a deliberate legislative attack on the economic foundations of organized crime. . The methods used in the enforcement of [underworld business obligations] are notorious. . . . [T]he conferees wish to leave no doubt of the congressional intention that chapter 42 is a weapon to be used with vigor and imagination against every activity of organized crime that falls within its terms. Conf.Rep.No.1397, 90th Cong., 2d Sess., 2 U.S.Code Cong. & Admin. News p. 2029 (1968).

A more clearly stated, open-ended directive by the legislative branch to the executive branch could not have been phrased.

Although the issue was not squarely presented and resolved, the Supreme Court, in Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), discussed in dicta the underlying intent of the statute. Perez held that the extortionate credit transactions statute, 18 U.S.C. § 891 et seq., as it applied to petitioner (concededly, a “loan sharker”) was a permissible exercise by Congress of its powers under the Commerce Clause of the Constitution. The issue here is the reach of that statute — ■ its application to Andrino, who contended on appeal to be nothing more than an ordinary gambling enthusiast. Mere forms and titles aside, it is clear that Congress intended this statute to regulate purely intrastate extortionate transactions if, in its judgment, they affected interstate commerce. And, if the threatening “ ‘evil’ ” adopts a different “form,” the law created to counter it may be extended to embrace it. See Perez, supra, 402 U.S. at 154, 91 S.Ct. at 1361. The absence in this case of formal “loans” and of specified “interest” rates, in all their myriad forms, is deemed to be inconsequential insofar as the actual characteristics of the extension of credit, the accrual of a debt, and the manifestation of coercion to collect that extension are sufficiently displayed by the evidence presented.

The rejection of similar arguments emphasizing the mere “forms” or differing “techniques” of illicit activity, purportedly beyond the sweep of a remedial statute enacted by Congress, was indicated in United States v. Roselli, 432 F.2d 879, 885 (9th Cir. 1970), rehearing denied (1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971), rehearing denied sub nom. 402 U.S. 924, 91 S.Ct. 1366, 28 L.Ed.2d 665 (1971), where this Court found certain gaming activities at a private social club to be within the reach of the interstate racketeering statute, 18 U.S.C. § 1952. The language on the face of that statute, as in 18 U.S.C. § 894, is broad, not narrow, and expansive, not restrictive— consistent with the intent of Congress to match the ingenuity of the criminal in adopting new, more evasive, “forms” and “techniques.” Andrino’s over-breadth argument is met by the Supreme Court’s conclusion that the statute sufficiently describes the subject class of activities to meet the required definiteness under the Constitution. Perez, supra, 402 U.S. at 153-154, 91 S.Ct. at 1360-1361. And, finally, Andrino’s argument that his particular activities, although perhaps within the class contemplated by the statute, may not be subject to the criminal proscriptions contained therein appears to be answered in substance by the proposition that once a rationally defined class of activities has been established the courts have no power to excise therefrom individual instances. Perez, supra, 402 U.S. at 154-155, 91 S.Ct. at 1361.

Andrino segregated his argument on the second issue into three separate attacks on the individual “incidents,” challenging the sufficiency of the evidence in general, and the variance of the evidence presented on the Bourassa count with the Government’s response to the bill of particulars. The appellate court may inquire whether the evidence, considered in a light most favorable to the Government, permitted a rational conclusion by the jury that the accused was guilty beyond a reasonable doubt. The test is not whether the evidence must exclude every possibility but that of guilt. United States v. Nelson, 419 F.2d 1237, 1242 (9th Cir. 1969). Circumstantial evidence is not less probative than direct evidence, and, in some instances, is even more reliable. Nelson, supra, 419 F.2d at 1239. Contentions as to the credibility of witnesses are to be resolved in favor of the jury’s findings. United States v. Haili, 443 F.2d 1295, 1299 (9th Cir. 1971). Applying these principles to the jury’s finding as to the second count of the first indictment (the “Sbrocca incident”), this Court cannot conclude insufficiency of evidence to sustain a conviction under the statute.

Similarly, the insufficiency of evidence argument is unpersuasive pertaining to the jury’s finding as to the first count of the first indictment (the “Bourassa incident”). Any inconsistencies with prior positions in Bourassa’s testimony were resolved by the jury, and this Court does not find those resolutions unsupportable in light of the record and under the standards of review. See discussion, supra. Andrino’s argument that the Government’s response to the bill of particulars did not sufficiently apprise him as to testimony subsequently given by Bourassa which went beyond that response (concerning implicit threats to his family) is without merit. The testimony did differ from the response given, but only slightly, and it is very difficult to accept the suggestion that Andrino’s trial tactics would have been substantially altered had he been given prior notice of the precise subject matter of that particular threat which had been conveyed to Bour-assa. A defendant is entitled to a bill of particulars insofar as it is necessary to enable him to prepare adequately for a defense — its fundamental purpose being the avoidance of surprise at trial. Williams v. United States, 289 F.2d 598, 600-601 (9th Cir. 1961). However, under the circumstances of this case, there is an insufficient demonstration that Andrino was actually surprised, or that his defense was significantly prejudiced by any variance that occurred.

With respect to the second count of the second indictment (the “Morrison incident”) Andrino contended that there is absolutely no evidence connecting him with the events at the cocktail lounge, relying principally upon the assertion that there was no positive identification of him as the bookmaker Morrison contacted on the phone. Under the circumstantial evidence adduced at trial, it was a reasonable inference for the jury to draw that Andrino was operating in concert with Giordano and Baronick. Since there was independent evidence establishing this relationship between Andrino, Giordano and Baronick, Baronick’s testimony as to Giordano’s knowledge of Andrino’s complicity in the cocktail lounge affair was admissible as an exception to the hearsay rule. United States v. Adams, 446 F.2d 681, 683 (9th Cir. 1971).

There are no inconsistencies in the jury’s split verdict as to the counts alleged in the “Morrison incident.” United States v. Puchi, 441 F.2d 697, 702 (9th Cir. 1971), rehearing denied (1971), cert. denied, 404 U.S. 853, 92 S.Ct. 92, 30 L.Ed.2d 92 (1971); see United States v. Manglona, 414 F.2d 642, 645 (9th Cir. 1969).

Finally, the recent Tenth Circuit case, United States v. Briola, 465 F.2d 1018 (10th Cir. 1972), rehearing denied (1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 908, 34 L.Ed.2d 688 (1973), is distinguishable insofar as the time sequence in that case raised a question as to Briola’s knowledge of the subordinate, Meyer, utilizing • a different name in placing the bets. There is no similar time sequential dilemma in this case. The evidence is clear that Andrino had the requisite knowledge of the creation of the debts, and that he subsequently manipulated the use of force against the debtors in such a manner as to merit the inference that he was primarily responsible for the physical and mental abuse of the debtors following the extension of the credit.

Andrino’s final contention regarding consolidation of the two indictments is equally without merit. The evidence relating to the several crimes charged tended to demonstrate a common “scheme or design” embracing those independent, yet related crimes, and tended to establish his complicity in their commission. Smith v. United States, 173 F.2d 181, 185 (9th Cir. 1949); accord, Tandberg-Hanssen v. United States, 284 F.2d 331, 333 (10th Cir. 1960). Any potential errors latent in the consolidation of the two cases was more than compensated for by adequate opportunity for cross-examination, and by limitation of jury instructions. United States v. Gary, 447 F.2d 907, 909-910 (9th Cir. 1971), rehearing denied (1971). That the jury acquitted Andrino of the first count in the second indictment evidences their discernment of the factual issues in the case, the ability of counsel to control presentation, and the propriety and strength of the trial court’s instructions. There was no prejudice in ordering consolidation of the two cases for single trial.

Accordingly, the judgment of conviction as to the three counts is affirmed.