source: Caselaw Access Project

author: STEVENS, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America ex rel. Joseph BOMBACINO, Petitioner-Appellee, v. Peter BENSINGER, Respondent-Appellant.
    No. 73-1175.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 9, 1974.
    Decided June 19, 1974.
    William J. Scott, Atty. Gen., Charles H. Levad, Asst. Atty. Gen., Chicago, 111., for respondent-appellant.
    Patrick A. Tuite, Chicago, 111., for petitioner-appellee.

      Before CUMMINGS and STEVENS, Circuit Judges, and GRANT, Senior District Judge.

       Senior District Judge Robert A. Grant of the Northern District of Indiana is sitting by designation.

   STEVENS, Circuit Judge.

The district court concluded that there was a constitutional defect in the statutory procedure by which Illinois determined to prosecute petitioner as an adult rather than as a juvenile; accordingly, the court issued a writ of habeas corpus ordering him released from custody. Since we find no constitutional infirmity in the Illinois procedure as it was applied in petitioner’s case, we reverse.

In 1967 petitioner, who was then 16, was arrested in connection with the beating of another youth. A delinquency petition filed in the juvenile court charged him and two other boys with aggravated battery. After the victim died, the State’s Attorney of Cook County moved, pursuant to a statutory provision which has since been amended, to transfer the case to the Criminal Division of the Circuit Court of Cook County. Petitioner’s counsel objected to the transfer. After hearing oral argument, but without receiving any evidence, the juvenile court granted the prosecutor’s motion. The three boys were then in-dieted for murder. Two were acquitted; the jury found petitioner guilty of voluntary manslaughter. He received a sentence of one to five years in the custody of the Department of Corrections. On appeal, the Illinois Supreme Court affirmed, expressly holding that the transfer procedure was not in conflict with Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84.

In Kent, the Supreme Court held that the juvenile court of the District of Columbia could not waive jurisdiction over a minor charged with a criminal offense without first affording the minor a hearing. Kent had been afforded no hearing; the juvenile judge’s ex parte decision was inadequate because his counsel was denied access to records considered by the judge, because the judge had an inadequate opportunity to consider the issue in an unhurried and impartial manner, and because no statement of reasons supported the decision of the juvenile court. The Supreme Court’s holding in Kent rested explicitly on the language of the District of Columbia statute. At several points in the Kent opinion, as well as in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, however, the Court indicated that such proceedings must comport with the basic requirements of the Due Process Clause.

There is some uncertainty about the impact of the Due Process Clause on the procedure followed by a state in determining whether to transfer a youth from the jurisdiction of a juvenile court to that of a court of ordinary jurisdiction. There is respectable authority for the view that the determination may be committed entirely to the discretion of the prosecutor. Under this view, procedural safeguards would not be constitutionally required unless the state elected to provide for judicial participation in the transfer decision. Since the Illinois procedure under review in this case did provide that the juvenile judge could object to a decision by the State’s Attorney to transfer, for purposes of our decision we may assume that the transfer proceeding is of such critical importance to the juvenile that any fundamental procedural unfairness in that proceeding will require a subsequent conviction to be set aside.

We find no such unfairness in the record before us. Petitioner made only two objections to the proceedings which resulted in his transfer: first, that no evidence was heard; and, second, that the judge gave no statement of reasons for his decision.

There are two aspects to the argument based on the absence of an evidentiary hearing. It is first significant that the court did not refuse to hear any evidence offered on behalf of the petitioner because no such offer was made. In oral argument his counsel made certain representations which, since they were unchallenged, presumably were accepted as true by the judge. Although petitioner’s guilt or innocence was in dispute, the facts concerning the juvenile’s age, education, family background, and the absence of a prior record, appear to have been undisputed. We find nothing in the record to indicate that petitioner was denied the opportunity to adduce evidence relating to the transfer issue.

At the oral argument before the juvenile judge, petitioner argued that the prosecutor should be required to introduce evidence to show probable cause that the juvenile was guilty of a criminal offense. Quite clearly, under the Illinois statutory procedure, such evidence was unnecessary. We find nothing in either the Kent opinion or in the concept of fundamental fairness which mandates such a hearing before the jurisdiction of the juvenile court may be waived. Of course, before an indictment can be returned, evidence of probable cause, sufficient to satisfy the grand jury, must be presented. That procedure adequately protects a person’s rights; there is no constitutional requirement that a probable cause showing must be made twice.

We are also satisfied that there is no inflexible requirement that a statement of reasons always be given by a juvenile judge before allowing a transfer to occur. The need for a statement of reasons in any procedural context must be evaluated in the light of the function such a statement would perform. We have recognized the importance of providing uncounselled laymen with a written explanation of decisions denying parole, or denying a Selective Service reclassification, and are aware of the desirability of such explanations in a prison disciplinary context. In such situations the statement enables the layman both to obtain meaningful appellate review and to know the standards of the decision maker to which he must attempt to conform his conduct. But no appellate review lay from an order of transfer under Illinois law applicable to petitioner’s case, and the decision included no prescription for future conduct. Moreover, a statement of reasons is less necessary when the person affected is represented, as was petitioner in this case, by competent counsel.-

We are well aware of the significant value of a statement of reasons in the decisional process of any case because such a statement always reduces the risk that the decision may be, or may appear to be, arbitrary. Nevertheless, there are so many aspects of the judicial process in which critical decisions have traditionally been made without explanation, that we could not properly hold that a statement is constitutionally mandated simply as a safeguard against real or apparent arbitrariness. Unlike Kent, in which the decision to transfer was for the juvenile judge and the Supreme Court apparently had some doubt as to whether he had had the opportunity to consider it sufficiently, the present case involves a statutory scheme in which the role of the judge was confined to supervising the exercise of prosecutorial discretion and the undisputed fact that the judge was given, by the oral argument he heard, sufficient opportunity to consider whether objection was appropriate. In this case the absence of a statement of reasons cannot be termed fundamentally unfair.

Since we find no essential unfairness in the record before us, the judgment of the district court must be

Reversed.

      . The statutory procedure which governed petitioner’s transfer provided:
      If a petition alleges commission by a minor 13 years of age or over of an act which constitutes a crime under the laws of this State, the State’s Attorney shall determine the court in which that minor is to be prosecuted; however, if the Juvenile Court Judge objects to the removal of a case from the jurisdiction of the Juvenile Court, the matter shall be referred to the chief judge of the circuit for decision and disposition. If criminal proceedings are instituted, the petition shall be dismissed insofar as the act or acts involved in the criminal proceedings are concerned. Taking of evidence in an adjudicatory hearing •in any such case is a bar to criminal proceedings based upon the conduct alleged in the petition.
      Ill.Rev.Stat., Ch. 37, § 702-7(3) (1967). Effective July 31, 1967, the statute was amended to provide:
      If a petition alleges commission by a minor 13 years of age or over of an act which constitutes a crime under the laws of this State, and, on motion of the State’s Attorney, a Juvenile Judge, designated by the Chief Judge of the Circuit to hear and determine such motions, after investigation and hearing but before commencement of the adjudicatory hearing, finds that it is not in the best interests of the minor or of the public to proceed under this Act, the court may enter an order permitting prosecution under the criminal laws.
      Ill.Rev.Stat., Ch. 37, § 702-7(3) (1971).

      . See People v. Bombacino, 51 Ill.2d 17, 280 N.E.2d 697 (1972), cert. denied, 409 U.S. 912, 93 S.Ct. 230, 34 L.Ed.2d 173.

      . 383 U.S. at 546, 554.

      . See 383 U.S. at 556.

      . See 383 U.S. at 553, 554, 555 and 556.

      . “Although our decision [in Kent] turned upon the language of the statute, we emphasized the necessity that ‘the basic requirements of due process and fairness’ be satisfied in such proceedings [383 U.S. at 553].” 387 U.S. at 12.

      . The Court of Appeals for the Fourth Circuit, sitting en Vane, concluded that confining the decision to transfer totally to the prosecutor’s discretion did not violate the Due Process Clause. Cox v. United States, 473 F.2d 334 (1973). In People v. Jiles, 43 Ill.2d 145, 251 N.E.2d 529, 531 (1969), Justice Schaefer expressed the same view: “While there would probably be almost universal agreement that it is desirable for a State to maintain a juvenile court and to establish special facilities for the treatment of a separate category of ‘juvenile delinquents’, we are aware of nothing in the constitution of the United States . . . that requires a State to do' so. Similarly, while it may be highly desirable to commit to the judge of a specialized juvenile court the determination of whether or not a particular juvenile is to be prosecuted criminally, we are aware of no constitutional requirement that a State must do so.” Although these authorities appear to support the proposition that transferring a juvenile offender from the jurisdiction of the juvenile court to that of the adult court may be committed to prosecutorial discretion without regard to the seriousness of the offense charged, neither those courts, nor we, have had to consider whether a relatively minor offense might raise a different issue.

      . The statute set forth in n. 1, supra, has been construed by the Illinois courts to provide for the exercise of prosecutorial discretion, controlled by the power of the juvenile judge to object to transfer. People v. Jiles, supra n. 7, 251 N.E.2d at 531; People v. Bombacino, supra n. 2, 280 N.E.2d at 699. In Bombacino, Kent was distinguished on the ground that the discretion under the District of Columbia statute there involved was vested in the juvenile court, not the prosecutor.

      . “Juvenile status is, in effect, a basis upon which a youthful offender can plead diminished responsibility for his unlawful act. If he can show that juvenile jurisdiction should not be waived by the court, he is not subject to the usual adult penal sanctions.” Kemplen v. State of Maryland, 428 F.2d 169, 175 (4th Cir. 1970). See also Powell v. Hocker, 453 F.2d 652, 654 (9th Cir. 1971).

      . Cf. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed. 411.

      . Indeed, had evidence of that character been presented, it might have had the effect of commencing an adjudicatory proceeding, thus barring subsequent criminal prosecution. See the statute applicable to petitioner’s case, supra n. 1. The new statute, also quoted in n. 1, supra, contains the same requirement. Cf. People v. DePoy, 40 Ill.2d 483, 240 N.E.2d 616 (1968), in which the court held that a hearing in which evidence was taken to determine whether a juvenile should be held in custody pursuant to Ill. Rev.Stat., Ch. 37, § 703-5(2), did not constitute an “adjudicatory hearing” for purposes of § 702-7 (3). See also Jones v. Breed, 497 F.2d 1160 (9th Cir., 1974).

      . Due process is, of course, a flexible concept ; the procedural safeguards which are required differ in different circumstances, See, e. g., Morrisey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484; Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 36 L.Ed.2d 656.

      . In King v. United States, 492 F.2d 1337, 1340-1341 n. 11 (7th Cir. 1974), we quoted a report on “Federal Parole Procedures,” 25 Ad.L.Rev. 459, 484-485 (Fall, 1973), to'the following effect:
      “Giving reasons for denying parole is desirable for both rehabilitational and legal reasons. A prisoner may feel less resentful of a negative decision if lie knows the reasons for it, and in planning his activities in the institution he ought to understand clearly what will help him to obtain an early parole. When the nature of his crime is such that early parole is not likely in any event, he should be protected from unrealistic hopes that can only lead to disappointment and bitterness. All this is the job of a prison counselor in any case, but the Parole Board can make that job much easier by formally stating its reasons.
      “From the legal standpoint, requiring a statement of reasons makes it possible to check abuse or error.1*' There is no way to discover if the Board is denying parole for an unconstitutional or improper reason if the Board never gives reasons for its decisions. It is not to impugn the good faith or competence of the Board to suggest the possibility that in some cases it might rely on reasons for denying parole that the courts would feel were improper or unconstitutional if they knew of them.”

      . Without a statement of the reasons why a Selective Service Board rejected a facially sufficient request for conscientious objector status, “the court can not otherwise determine with any degree of assurance that the decision really made by the board properly supported the rejection and had a basis in fact. . . .” United States v. Lemmens, 430 F.2d 619, 624 (7th Cir. 1970).

      . Although the opinion in Miller v. Twomey, 479 F.2d 701 (7th Cir. 1973), did not specify a written statement of reasons as one of the bare minima that must accompany the substantial deprivation of the “liberty” retained by a prison inmate, this element of procedural fairness was among those which the district courts were directed to evaluate on remand during the proceedings relating to remedy. 479 F.2d at 716-719.

      . See People v. Jiles, supra n. 7.

      . See the Court’s footnote 5 in Kent, 383 U.S. at 546; and 383 U.S. at 555-556.


author: CUMMINGS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Otto HOFFMAN and Richard Curotto, Defendants-Appellants.
    No. 73-2030.
    United States Court of Appeals, Seventh Circuit.
    Heard April 5, 1974.
    Decided June 25, 1974.

      Charles R. Purcell, Lawrence E. Morrissey, Chicago, 111., for defendants-appellants.
    James R. Thompson, U. S. Atty., Jeremy D. Margolis, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
    Before FAIRCHILD, CUMMINGS and STEVENS, Circuit Judges.
   CUMMINGS, Circuit Judge.

Defendant railroad police officers were named in a 13-count indictment. The first count charged that they and Chester Garelli, an unindicted co-conspirator, conspired to deprive seven named individuals of their constitutional rights in violation of 18 U.S.C. § 241. The twelve substantive counts charged violations of twelve individuals’ constitutional rights in violation of 18 U.S.C. §§ 242 and 2 over a time period ranging from early October 1971 to April 1972. A jury found the defendants guilty on all counts. They received concurrent sentences of two years on the conspiracy count and one year on each of the remaining counts.

A 1968 Illinois statute gave the defendants and Garelli, as members of the Penn Central Transportation Company’s police force, “like police powers as those conferred upon the police of cities.” Ill.Rev.Stat.1973, ch. 114, § 98. In addition, Curotto was commissioned as a special police officer by the Chicago Police Department in 1966 and Hoffman in 1960. Those commissions were “renew [ed] ” or “update [d] ” in 1973.

Defendants do not challenge the sufficiency of the evidence to show that they committed a number of assaults and batteries upon persons found on or near the property of Penn Central. Instead, they claim the evidence was insufficient to support a finding that they were acting under color of Illinois law with specific intent to deprive persons of rights secured by the Constitution of the United States. The evidence describes beating and other mistreatment of vagrants found on railroad property or adjacent thereto. As defendants’ brief states, “All of these are undeniable examples of brutal assaults * *

The record shows that the defendants acted under color of state law. The acts charged occurred while they and Garelli were on duty and were armed with service revolvers while possessing the same powers as city police. One of their functions was to eject trespassers. They were required to submit daily time and activities sheets showing, inter alia, the number of trespassers- ejected. They used the railroad police communication system to report their activities. Curotto attempted to justify his conduct to a fellow officer, stating that the trespassers were constant repeaters and that he had to use brutal tactics to keep them from returning. In sum, the acts alleged in the indictment occurred under the authority granted them as railroad policemen rather than as private persons. Under the applicable precedents, it is plain that the assaults occurred while they were cloaked with the authority of the state, thus constituting action under color of law within 18 U.S.C. §§ 241 and 242. Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774; cf. Griffin v. Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754.

Defendants rely on Ouzts v. Maryland National Insurance Co., 470 F.2d 790 (9th Cir. 1972); Bichel Optical Laboratories v. Marquette National Bank, 487 F.2d 906 (8th Cir. 1973); and Adams v. Southern California First Nat’l Bank, 492 F.2d 324 (9th Cir. 1973). We need not decide whether we agree with those cases, for all are distinguishable. None of them involves a continuing delegation of the law enforcement power of the state. Ouzts involved a statute authorizing a bail bondsman to arrest a fugitive whose court appearance he had insured. Bichel and Adams involved secured creditor self-help repossession statutes. Common to each of these cases is a preexisting contractual relationship, and a narrow delegation to a private party of powers normally reserved to the state to enforce particular rights in each instance in which breach of contract is threatened. Defendants here, by contrast, are authorized on a continuing and full-time basis to search actively for criminals and trespassers and to use the powers of the state when their search is successful. Their territorial jurisdiction is limited, but unlike the defendants in Ouzts, Bichel and Adams, they are not limited to taking action only against certain previously identified persons for one narrowly defined offense.

We reject defendants’ argument that they merely served the private interests of the railroad, and that what made their brutality possible was not their police power, but their private employment which gave them access to railroad property. Illinois has concluded that crimes against the railroad and its passengers and employees are a matter of public concern. Trespass on posted land is a misdemeanor. Ill.Rev.Stat. 1973, eh. 38, § 21-3. The statute delegating police power to defendants states that they are to “aid and supplement” municipal police forces. Ill.Rev.Stat. 1973, eh. 114, § 98. “If an individual is possessed of state authority and purports to act under that authority, his action is state action. It is irrelevant that he might have taken the same action had he acted in a purely private capacity * * Griffin v. Maryland, 378 U.S. at 135.

Defendants’ argument that they could not have acted under color of law unless they initiated the formal processes of the criminal law is frivolous. The essence of their federal offense is precisely that they attempted to enforce the law by coercive means while bypassing the procedures designed to protect the rights of the trespassers.

Defendants assert that the evidence is insufficient for the jury to conclude that they intended to deprive their victims of rights secured by the federal Constitution. But defendants inflicted summary punishment under color of law, thus willfully intending to deprive their victims of due process of law. Crews v. United States, 160 F.2d 746, 749-750 (5th Cir. 1947); United States v. Delerme, 457 F.2d 156, 161 (3d Cir. 1972). As those cases hold, it is immaterial that defendants may have received personal gratification from the brutality.

Defendants also assail one of the intent instructions given by the district court. They acknowledge the correctness of the following instruction contained in the court’s charge:

“[T]here must have been an intent on the part of the defendant willfully to subject the victim to a deprivation of a right, privilege or immunity secured or protected by the Constitution and the laws of the United States.”

They complain that the force of this instruction “is immediately watered down” by the next instruction, which provided:

“Now, ‘specific intent’ is required and the term means more than a general intent to commit the act. To establish specific intent the Government must prove that the defendant knowingly did an act which the law forbids, purposely intending to violate the law, but such intent may be determined from all of the facts and circumstances surrounding the case.”

This latter instruction is said to permit the jury to convict without finding that the defendants’ acts were specifically intended to deprive their victims of a constitutional right. However, when the two instructions are taken together, it is clear that the “act which the law forbids” in the second instruction refers to a deprivation of a constitutional right, as mentioned in the first instruction. This interpretation is reinforced by another instruction on intent reading as follows:

“ ‘Intent’ is merely the presence of a willingness to commit the act charged. It does not require knowledge that such an act is in violation of the law but it is necessary that the defendants had the actual knowledge —but it is necessary that the defendants have had the actual purpose of depriving the victims of their constitutional rights enumerated in the indictment.”

Since the overall effect of the charge on intent stated the law with substantial accuracy, nothing more was required. Clark v. United States, 193 F.2d 294 (5th Cir. 1951).

Finally, defendants request a new trial on the ground that the trial judge erroneously admitted evidence that Hoffman and Curotto had been appointed special policemen by the Superintendent of Police of Chicago in 1960 and 1966 respectively and that those appointments were renewed in 1973. As defendants observe, no evidence was adduced to show that the commissions in question were renewed annually under ch. 173-7 of the Municipal Code of Chicago through the period of time charged in the indictment. Another provision of the Municipal Code exempts special policemen of a common carrier from the licensing provisions. It thus appears that defendants’ commissions expired after one year, but that they were not required to renew their commissions annually because they were not required to be commissioned at all. It follows that these commissions were not admissible to show that defendants were granted law enforcement authority by the City of Chicago. But if there were any error here, it was harmelss beyond a reasonable doubt, for defendants have not denied that they had law enforcement authority; their contention has been that they were not acting pursuant to that authority when they beat their victims. Furthermore, defense counsel objected to the admission of these documents only on the erroneous ground that the indictment did not “say anything about the City of Chicago.”

Finally, the records were introduced expressly to prove that defendants were “commissioned special police officers for the Penn Central Transportation Company.” The exhibits showed that Hoffman had been a Penn Central policeman for 12% years prior to February 2, 1973, and that Curotto had been such for 7 years prior to July 12, 1973. The Government had to prove that defendants were railroad policemen to show that the Illinois statute granting the powers of city police was applicable. The exhibits were admissible for this purpose, and no limiting instruction was requested.

Judgments affirmed.

      . In United States v. Belcher, 448 F.2d 494, 497 (7th Cir. 1971), we determined that railroad policemen have “authority as police officers under the Illinois Statutes.”

      . Oh. 173-7 provides:
      “The superintendent of police shall issue a special certificate of appointment to each person appointed as a special policeman, which certificate shall expire one year from the date of its issuance. The superintendent of police shall have power to renew any such appointment for a period of one year. He shall keep a correct list of all persons appointed as special policemen.”

      . Ch. 173-2 of the Municipal Code provides:
      “It shall be unlawful for any person to engage in the business of a special policeman without first being appointed and licensed therefor; provided, however, that no license shall be required of a special policeman engaged in the business of protecting persons, passengers, and property being transported in interstate or intrastate commerce within the city by a common carrier and the protection of the property of said common carrier within the city, but a special policeman engaged in such business shall comply with all the other provisions of this chapter applicable to him.”
      Furthermore, ch. 173-12 permits the Superintendent of Police of Chicago to revoke a certificate of appointment for a special policeman of a common carrier only “for cause.”


author: WILLIAM E. MILLER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Evanyelos GEORVASSILIS, Defendant-Appellant.
    No. 73-2232.
    United States Court of Appeals, Sixth Circuit.
    Argued April 16, 1974.
    Decided July 5, 1974.

      Carl F. Sehier, Jenkins, Fortescue, Miller & Nystrom, Lathrup Village, Mich., on brief for defendant-appellant,
    Ralph B. Guy, Jr., U. S. Atty., Peter J. Kelley, Asst. U. S. Atty., Detroit, Mich., on brief, for plaintiff-appellee.
    Before WEICK, MILLER and LIVELY, Circuit Judges.
   WILLIAM E. MILLER, Circuit Judge.

The appellant, Evanyelos Georvassilis, and his co-defendant, Thomas Murphy, were indicted for violating 18 U.S.C. § 242. Specifically, the indictment charged that Murphy and appellant had assaulted and beaten one John Shelton while he was a prisoner in the Wayne County jail. Both defendants retained the same attorney. Two months before trial, defendants’ counsel moved for separate trials because the defenses would be inconsistent. A hearing on this motion was set for the morning that trial was to begin. However, it appears that the motion was not pressed, and the court never made a ruling.

The trial was to the court without a jury. The common defense of both defendants was that they had used no more force than necessary to control the recalcitrant prisoner. Neither defendant took the stand although defense counsel had told the court at the start of trial that one defendant might testify. The attorney did not identify the potential witness.

Five days after the entry of the verdict, defendants moved for a new trial for the reason that defendant Murphy now wished to testify and present evidence that would exonerate him. No statement was made that appellant wished to testify nor was there any allegation that evidence would be submitted that would exculpate him. Quite the contrary. In the affidavit accompanying the motion the defendants’ attorney stated that Murphy’s testimony would be adverse to appellant. The attorney went on to state that as a result of his pretrial investigation of the case he discovered facts that would have supported Murphy’s acquittal. Murphy was then advised that it was in his best interest to testify in his own behalf, but he continually told the attorney that he did not wish to take the stand — perhaps because he did not wish to incriminate appellant, his fellow deputy. It was only after the trial that Murphy advised his attorney that he wished to testify.

The court granted a new trial for Murphy. Since there was no indication that' appellant wished to testify or that he would present any new evidence helpful to his cause, the court denied his new trial motion. However, in order not to further and unnecessarily to implicate appellant, the court limited the scope of Murphy’s subsequent testimony “to his physical and verbal acts regarding the events in question.” As a result of Murphy’s testimony, the court vacated the former conviction and entered a verdict of not guilty in its stead. Appellant now brings this appeal attacking the validity of § 242 under which he was indicted and also alleging that the district court erred in not granting him a new trial.

An essential element of the charge against appellant under § 242 was that he deprived Shelton of “rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . .” Appellant contends that even if he did assault Shelton, he did not violate any of the prisoner’s constitutional rights but at most committed a tort under state law. We disagree. Shelton’s eighth amendment right to be free from cruel and unusual punishment prohibits state officers at detention facilities from subjecting prisoners to assaults and beatings. See Jackson v. Bishop, 404 F.2d 571, 579-580 (8th Cir. 1968). Appellant’s alleged actions violated that right and thereby brought him within the ambit of illegal conduct described in the statute.

Appellant also contends that the district court should be reversed because if there is a new trial appellant “might” decide to testify and “might” present evidence that would cast doubt on the guilty verdict. Neither before the district court nor before this court on appeal has appellant stated positively that he would take the stand on retrial or that he would present evidence that was not submitted at the first trial. Instead, appellant states that since defendant Murphy was acquitted on retrial, then there is the possibility that he might also be acquitted. This sort of vague suggestion that somehow the verdict on retrial might be different from that of the original trial is not sufficient to warrant a new trial. When there is a proper reason for doing so, there is no barrier to granting a retrial to one co-defendant but not to the other. United States v. Proctor, 12 FRD 359 (D.C.D.C.1951). In this case the district court correctly followed that procedure.

Although it was not raised in the briefs, there is one more matter that is of sufficient importance to warrant discussion. Defense counsel discovered prior to the original trial that Murphy had a strong defense that was inconsistent with that of the appellant. Moreover, if Murphy had taken the stand, his testimony would have been detrimental to appellant’s cause. When such a situation arises, it is impossible for one lawyer adequately to represent the interests of both defendants in a joint trial. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Defense counsel should have realized that a vigorous defense of Mui’phy would have been detrimental to appellant. To avoid all possible conflicts of interest an attorney may have to limit his representation in such situations to only one of the defendants. See The Code of Professional Responsibility of the American Bar Association, EC 5-14 through 5-17. This is the recommended course even though the defendant continually states that he does not wish to assert the inconsistent defense. For in attempting to persuade one defendant to take the stand, the attorney must necessarily work against the interest of his other client. On the other hand, if he does not vigorously urge the one defendant to testify, he has not met his responsibility to that client. The situation is fraught with difficulty for both the attorney and the client. The only effective and proper solution would appear to be the attorney’s withdrawal from the representation of one of the defendants.

When the possibility of inconsistent defenses is brought to the attention of the court, as it was here in the pretrial motion for severance, the court should inquire into the nature of the conflict and, if necessary, strongly suggest that the defendants should be represented by separate counsel. See United States v. Alberti, 470 F.2d 878, 881-882 (2nd Cir. 1972), cert. den., 411 U.S. 919, 93 S.Ct. 1557, 36 L.Ed.2d 311 (1973). Once the court learns of the problem, it should pursue the matter itself even if the attorney does not.

In the present case, since appellant was not prejudiced by being repre? sented by the same attorney as Murphy, there is no basis for a new trial. United States v. Long, 415 F.2d 307 (6th Cir. 1969); United States v. Foster, 469 F.2d 1 (1st Cir. 1972). In fact, it appears that appellant benefitted from this arrangement, for had Murphy been represented by separate counsel, he might have been persuaded to take the stand and give testimony that would have been adverse to appellant’s defense. There is no suggestion in the briefs or in the record that appellant had any defense that was not raised nor any favorable evidence that was not submitted.

The judgment of conviction is affirmed.

      . The statute reads as follows :
      Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life.


author: STECKLER, District Judge. WILLIAM J. CAMPBELL, Senior District Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kobert BELL, Defendant-Appellant.
    No. 73-2038.
    United States Court of Appeals, Seventh Circuit.
    Argued April 2, 1974.
    Decided July 2, 1974.
    Ralph J. Derango, Jr., Belleville, 111., for defendant-appellant.
    Henry A. Schwarz, U. S. Atty., E. St. Louis, 111., for plaintiff-appellee.
    Before PELL, Circuit Judge, CAMPBELL, Senior District Judge, and STECKLER, District Judge

       District Judge William E. Steekler of the Southern District of Indiana is sitting by designation.

   STECKLER, District Judge.

Defendant, Robert Bell, was charged by information with the possession of heroin in violation of Title 21, United States Code, Section 844(a). Following a jury verdict of guilty and the denial of defendant’s post-trial motion for an order granting a new trial, or in the alternative for acquittal, the defendant was sentenced to a one-year term of imprisonment. We affirm.

On August 30, 1972, at approximately 5:15 p. m., three officers from the Drug Abuse Law Enforcement Agency were driving near the Brown Bomber Tavern located at East and Exchange Avenue in East St. Lou-is, Illinois. Agents Bloemker and Loehr testified that as their automobile made a U-turn towards the tavern they witnessed the defendant, Robert Bell, drop three tinfoil packets to the ground. As Bell turned to walk away the agents drove up next to the tavern and parked their automobile. Agent Bloemker got out and retrieved the tinfoil packets while Agent Loehr simulatneously placed defendant Bell under arrest for suspected possession of a narcotic. • The defendant was searched and transported to the East St. Louis police department. The tinfoil packets were later found to contain a heroin substance.

Defendant contends that his conviction should be reversed by reason of an improper statement made by Agent Loehr in his trial testimony. On direct examination Agent Loehr described the events surrounding the arrest and search of the defendant. After stating that he searched the defendant he was asked by the United States Attorney what he did next. Agent Loehr commenced to reply, “I retrieved from his waistband . . . .” Defendant’s counsel interrupted the answer and stated, “Your Honor, ... I want to object to his waistband — it would have nothing to do with the offense charged and would be prejudicial at this time.” Without further reference to the objection from either side or ruling by the court, the United States Attorney went on to his next question, and the waistband matter was not further pursued during the trial.

On appeal the defendant argues it was obvious that the questions leading into the search and the answer referring to retrieving something from the defendant’s waistband “most likely referred to a weapon.” Defendant asserts that it was prejudicial error to introduce evidence concerning dangerous weapons found among the belongings of a person charged with an unrelated crime. In support of this contention the defendant relies on United States v. Reid, 410 F.2d 1223 (7th Cir. 1969), and Thomas v. United States, 376 F.2d 564 (5th Cir. 1967).

The Reid case involved a charge of assault on an employee of a federal penal institution, and self-defense was the justification offered. The defendant’s conviction was reversed in part because of the Government’s introduction of evidence of defendant’s possession of a padlock with a cloth attached and of its probable use. The Thomas case involved a prosecution for possession of a sawed-off shotgun. In that case the court found that introduction of evidence that a chain and bull whip were found with the gun was prejudicial error.

In the context of this case the defendant’s reliance on Reid and Thomas is misplaced. Here, apart from the evidence of the defendant’s possession of the heroin substance, there was no evidence before the jury that the defendant possessed a weapon. The defendant’s characterization of the testimony regarding the retrieval of something from his waistband as “most likely” referring to a weapon is nothing more than conjecture. From no more than what was said by Agent Loehr the jury could just as well have concluded that the agent was referring to a retrieval of additional heroin substance from the defendant’s waistband. Viewing the record as a whole, Agent Loehr’s partial answer to which the objection was made does not constitute grounds for reversible error, nor in this regard do we feel the defendant was denied a fair trial. Thus there is no valid basis for the defendant’s argument. United States v. Burke, 342 F.2d 593 (7th Cir. 1965); United States v. Borkenhagen, 468 F.2d 43 (7th Cir. 1972).

The defendant next argues that the “net effect” of the testimony of Detective Anderson, a government witness, was to portray the defendant as having bad character when the defendant’s character was not in issue.

The alleged objectionable aspect of Detective Anderson’s testimony was his answer to one question in which he stated, “I asked was he [the defendant] a junkie and Bell said he wasn’t a junkie, and I asked him was he related to King Bell, and he said he was his cousin, and I told Special Agent Bloemker I didn’t trust him, and I left.” While we are not convinced that this testimony constituted evidence of bad character, any error that may have been committed was cured when the trial court sustained the defendant’s objection, granted his motion to strike the testimony, and instructed the jury to disregard it.

Defendant’s third proffered ground for reversal is that the Government misstated the evidence during final argument. The United States Attorney incorrectly referred to witness Swan as testifying that “this was one of the few times he [defendant] had purchased heroin” when such testimony was in fact given by Agent Bloemker. This misidentification by the United States Attorney was not prejudicial to the defendant and would at most constitute harmless error.

Defendant’s final contention on appeal is that the Government made an inflammatory comment in final argument. The United States Attorney concluded his final argument in the following manner:

“I think we have done our job. I think we have presented a ease to you that proved beyond a reasonable doubt that this person here, Robert Bell, had heroin on his person and that he possessed it on August 30, 1972; and I think you must convict him based on the evidence that the Government has presented. If you don’t convict him, just let him go out the door and get some more heroin.”

Immediately following the making of the statement the defendant objected and the court sustained the objection, ordered the statement stricken from the record, and instructed the jury to disregard it. On the basis of this record we find that any prejudicial effect the statement may have had on the jury was cured and no reversible error was committed.

The contentions of the appellant are without merit and the judgment of the trial court is affirmed.

Affirmed.

WILLIAM J. CAMPBELL, Senior District Judge

(concurring).

Because the jury was not specifically advised that Bell was in possession of a dangerous weapon, I concur in the court’s decision to affirm his conviction. I wish however to emphasize that had Agent Loehr testified that he retrieved a weapon from defendant’s waistband, such testimony would have been wholly prejudicial and a cautionary instruction to the jury would not have adequately cured the error. I stress this fact because, prior to Agent Loehr’s testimony, defense counsel sought a protective order against the introduction of any evidence pr testimony that defendant had been in possession of a weapon at the time of his arrest. The district judge ruled that the witness could testify as to what was found on the defendant’s person. That ruling, under United States v. Reid, 410 F.2d 1223 (7th Cir. 1969) was erroneous. Judge Cummings’ excellent opinion in Reid could not be more definitive:

“We can only regard the testimony concerning the * * * [weapon] as highly prejudicial and without probative value. Its presence could only serve to invite the jury to speculate about other bad acts which the defendant may have committed. The introduction of testimony concerning dangerous weapons found among the belongings of a person charged with a crime, no part of which depends upon the use or ownership of the weapon, has consistently been regarded as prejudicial error requiring a new trial. [Citations omitted.] Only where there is independent evidence tending to relate the use of the weapon to the commission of the offense has the introduction of such evidence been admitted. United States v. Blackburn, 389 F.2d 93, 95-97 (6th Cir. 1968). We hold that this evidence was unduly prejudicial and inflammatory and no reference to it may be permitted at the next trial.” 410 F.2d at 1226-1227.


author: TRASK, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Louis Mabry POWELL, Defendant-Appellant.
    No. 73-2545.
    United States Court of Appeals, Ninth Circuit.
    April 16, 1974.
    Certiorari Denied Oct. 15, 1974.
    See 95 S.Ct. 121.

      Frank J. Ragen, II (argued), Federal Defenders, Inc., San Diego, Cal., for defendant-appellant.
    David P. Curnow, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.

       Honorable William P. Gray, United States District Judge for the Central District of California, sitting by designation.

   OPINION

Before MERRILL and TRASK, Circuit Judges, and GRAY, District Judge.

TRASK, Circuit Judge.

Powell appeals his conviction for transporting aliens illegally present within the United States, a violation of 8 U.S.C. § 1324(a)(2). Jurisdiction below was predicated upon 18 U.S.C. § 3231; this court has jurisdiction pursuant to 28 U.S.C. § 1291.

On February 23, 1973, at approximately 11:50 p. m., appellant’s parked vehicle was approached by a California highway patrolman who had just observed appellant “run” a stop sign and drive on the wrong side of the road “for several car lengths.” R.T. at 15-16. Upon the patrolman’s request to see appellant’s driver’s license, appellant stated that he had a temporary license, and began looking for it inside his wallet. The patrolman was shown a traffic citation issued earlier that day for driving without a license. Id. at 19. Appellant, upon request, gave the patrolman a license issued in another name, and told the patrolman that the license was “collateral” for a personal loan. Id. While appellant continued to look for identification, the patrolman appoached the individual sitting on the passenger side of the vehicle. When asked for identification, the man replied that he had none, that he did not speak English, and that he had been born in Los Angeles in 1946. Id. at 20, 42. While conversing with this individual, the patrolman observed a spare tire and jack on the back seat of the automobile. The patrolman returned to the appellant who, while continuing his “search” for identification, began to peruse a notebook that had been inside his pocket. While he was so doing, the officer saw that the notebook contained a list of Mexican names with dollar amounts recorded adjacent to each. Appellant’s vehicle was then searched, and five aliens illegally present within the United States were removed from the automobile’s trunk.

Appellant’s first contention is that insufficient evidence was produced at the trial to support a finding of venue within the Southern District of California. His vehicle was searched and he was arrested some 20 miles within Orange County, California, which is 20 miles within the Central District. We note at the outset that venue, since it may be waived, is not an essential fact constituting the offense charged. Carbo v. United States, 314 F.2d 718, 733 (9th Cir. 1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498 (1964); Rodd v. United States, 165 F.2d 54, 56 (9th Cir. 1947), cert. denied, 334 U.S. 815, 68 S.Ct. 1070, 92 L.Ed. 1745 (1948), Fed.R.Crim.P. 12(b)(2). Further, venue need be proved only by a preponderance of the evidence, and can be established either directly or circumstantially. United States v. Trenary, 473 F.2d 680, 682 (9th Cir. 1973). A consideration of the circumstantial evidence, including statements of the appellant, supports the conclusion of the trial court that venue was established. Finally, venue may be waived, Carbo, supra, and where, as here, the objection was not raised until after the jury had returned its verdict of guilty, we find that waiver did in fact occur. United States v. Jackson, 482 F.2d 1167, 1179 (10th Cir. 1973); United States v. McMaster, 343 F.2d 176, 181 (6th Cir.), cert. denied, 382 U.S. 818, 86 S.Ct. 42, 15 L.Ed.2d 65 (1965); United States v. Polin, 323 F.2d 549, 556-557 (3d Cir. 1963); see Gilbert v. United States, 359 F.2d 285, 288 (9th Cir.), cert. denied, 385 U.S. 882, 87 S.Ct. 169, 17 L.Ed.2d 109 (1966). A new trial on venue grounds raised after the jury has convicted gives the appellant a second bite at the apple to which he is not entitled under the circumstances here.

Appellant argues that the Government should have established the names of the six illegal aliens. The cpntention is without merit. He stipulated that the aliens found in the automobile were in the United States unlawfully. The Government proved by the highway patrolman that they were being transported by appellant. Nothing in the statute requires identification by name, 8 U.S.C. § 1324(a)(2), and the names add nothing to the proof of the elements of the crime. The mention of the names in the indictment was surplusage not requiring proof. Gawne v. United States, 409 F.2d 1399, 1403 (9th Cir. 1969), cert. denied, 397 U.S. 943, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970).

The admission of the defendant’s prior conviction for alien transportation was not erroneous. Appellant stipulated to the conviction and the factual situation upon which the conviction was predicated. It was offered to establish criminal intent. Appellant argues that this 1969 conviction should be rendered unconstitutional based upon this court’s subsequent decision in United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971). We assume arguendo that Mendez-Rodriguez may be applied retroactively and that the use of the prior in the instant case, if the conviction is invalid because of Mendez-Rodriguez, would be impermissible. See Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Nevertheless, appellant has not demonstrated specifically in what manner his 1969 conviction was infected by the Government practice invalidated by Mendez-Rodriguez. Under these circumstances, we decline to upset appellant’s prior conviction and hold that its use in this trial was not improper.

We have carefully considered the other claims of reversible error in the proceedings below and do not find merit in them.

The judgment is affirmed.

      . Tlius, for example, appellant has not stated that his counsel in the former case was unable to interview the seized aliens prior to their deportation to Mexico, if, indeed, they were deported.


author: ALDISERT, Circuit Judge.

text:
    GOVERNMENT OF the VIRGIN ISLANDS v. Norilyn Carde RICHARDSON, Appellant.
    No. 74-1055.
    United States Court of Appeals, Third Circuit.
    Argued April 23, 1974.
    Decided June 18, 1974.

      Neil J. Ward, Christiansted, St. Croix; V. I., for appellant.
    Julio A. Brady, U. S. Atty., John S. Wilbur, Jr., Asst. U. S. Atty., Christiansted, St. Croix; V. I., for appellee.
   OPINION OF THE COURT

Before ALDISERT, ADAMS and GARTH, Circuit Judges.

ALDISERT, Circuit Judge.

In her appeal from a voluntary manslaughter conviction under the Virgin Islands Code, the defendant raises four contentions: (1) the judgment of the district court was not supported by substantial evidence, (2) the district court treated the indictment as one for murder, when in fact the indictment was for voluntary manslaughter, (3) the district court was biased in sentencing the defendant because of its knowledge of proceedings then pending against her, and (4) the sentence was excessive. Because there is patently no merit in the defendant’s first two contentions, we affirm her conviction without the necessity of a detailed exposition. We do, however, find it appropriate to discuss contentions relating to the sentence.'

I.

Appellant was tried before a judge sitting without a jury. Two days after the conclusion of her trial, she was sentenced to the maximum penalty of ten years’ imprisonment. During the sentencing hearing, defense counsel learned that an oral presentence report had been made to the court. Appellant argues that the substance of that report was never made available to her or to her counsel, thereby depriving them of an opportunity to refute the findings or facts submitted by the probation officer.

Rule 32(c)(2), F.R.Cr.P., made applicable to the District Court of the Virgin Islands, Rule 54(a)(1), F.R.Cr.P., and adopted, 5 V.I.App. II R 32(c)(2), provides in part: “The court before imposing sentence may disclose to the defendant or his counsel all or part of the material contained in the report of the presentence investigation and afford an opportunity to the defendant or his counsel to comment thereon.”

Advisory Committee notes on Rule 32 express a hope that “courts [would] make increasing use of their discretion to disclose so that defendants generally may be given full opportunity to rebut or explain facts in presentence reports which will be material factors in determining sentences.” See United States v. Miller, 495 F.2d 362 (7th Cir. 1974). While this court might well agree with a general policy of encouraging disclosure of presentence reports, defense counsel in this case at no time asked the sentencing judge for disclosure of the oral report made by the probation officer. In United States v. Dreer, 457 F.2d 31, 34 (3d Cir. 1972), we were faced with a similar situation and, reasoning that “the rule does not give the defendant a right to examine the report,” we found no error because the defendant had not asked to see the report prior to sentencing. We are not persuaded to depart from the Dreer holding in this case.

II.

Appellant additionally contends that the sentence imposed was excessive. It is settled that a federal appellate tribunal will not examine the length of a sentence which is within the statutory maximum unless there be a showing of illegality or an abuse of discretion manifested in the sentencing procedure. United States v. Fessler, 453 F.2d 953, 954 (3d Cir. 1972); Government of the Virgin Islands v. Venzen, 424 F.2d 521 (3d Cir. 1970); Government of the Virgin Islands v. Rodriguez, 423 F.2d 9 (3d Cir. 1970). Appellant has not shown that the sentence was the result of anything other than “a proper exercise of judicial judgment.” United States v. Rodriguez, supra, 423 F.2d at 11.

The question of review of sentences in federal cases is now under active consideration by both the Judicial Conference of the United States and Congress. Proposed Amendment to the Federal Rules of Criminal Procedure, Rule 35(c), would provide for review of sentences by a panel of district judges. S. 716, 93d Cong., 1st Sess. (1973), introduced by Senator Hruska, would provide for review by this court under certain circumstances. See ABA Approved Draft, Standards Relating to Appellate Review of Sentences (1968); M. Frankel, Criminal Sentences: Law Without Order (1973). Unless and until these changes are mandated by Congress, the trial court’s discretion as to a sentence will not be disturbed if the sentence falls within statutory authorization and there is no defect in the sentencing procedure.

III.

Appellant next argues that the district court judge improperly considered a criminal charge pending against her in determining sentence:

THE COURT: Incidentally, what I have learned this morning and had a hint of before, it seemed her conduct wasn’t too good while she was awaiting trial because she with some other person tried to light a guard afire. Now that doesn’t seem to be the type of conduct you expect from someone in custody.
MR. WARD: Your Honor—
THE COURT: Just a minute, Mr. Ward, you have had your say.
•X* *x- * *x*

N.T. 224.

She argues that defense counsel should have been given an opportunity to “tell the court the charge was still pending, that there may have been circumstances surrounding the incident of which the court had no knowledge. . . . ” (Brief for Appellant, at 10.) It is also appellant’s position that the district court should not have received information concerning the pending charge and that reference to the charge was “extremely prejudicial.”

We have previously held that a sentencing judge may properly consider pending indictments in determining a defendant’s sentence. United States v. Metz, 470 F.2d 1140, 1142 (3d Cir. 1972), cert. denied, 411 U.S. 919, 93 S.Ct. 1558, 36 L.Ed.2d 311 (1973); United States v. Allen, 494 F.2d 1216 (3d Cir. 1974).

On this issue the panel is divided. I would affirm the judgment of the district court. To the extent that appellant argues that mere consideration of the indictment was improper, her position cannot be sustained.

Although the trial court’s refusal to allow defense counsel to comment on the pending indictment appears at first blush to require a remand for resentencing, this too is but a thin reed which collapses under the heavy weight of close analysis. Appellant’s brief states only that there “may have been circumstances surrounding the incident. . ” There is no allegation that there were in fact crucial matters unknown to the sentencing judge. Appellant does not deny the substance of the pending charge or allege that the sentence was founded upon “misinformation of constitutional magnitude.” United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). I would not remand on the basis of mere conjecture that there may have been circumstances without the barest allegation that such circumstances did in fact exist.

Judges Adams and Garth disagree with me concerning the need for resentencing in this case. In their view, the appellant was entitled, through her counsel, to offer whatever explanation she may have had regarding the conduct adverted to by the trial court. This view is grounded in the fact that the trial court’s knowledge of the appellant’s alleged misconduct while awaiting trial appears to have been derived from hearsay. Judges Adams and Garth consider that, under such circumstances, the appellant is entitled to be heard, notwithstanding the absence of any assertion in her brief that she can relate facts which might temper the trial court’s view of the alleged pretrial incident. They are concerned that there may be, for example, an instance of mistaken identity, that there may exist extenuating factors, or that perhaps the incident did not occur at all. Conceding that any such information ideally should have been summarized in the appellant’s brief, Judges Adams and Garth insist that considerations of fairness require that Ms. Richardson be resentenced.

Accordingly, appellant’s conviction will be affirmed, but the case will be remanded to the district court for resentencing. At resentencing, appellant’s counsel shall be given an opportunity to explain, if he can, the allegations concerning appellant’s conduct while awaiting trial.

      . Under the Proposed Amendments to the Federal Rules of Criminal Procedure, disclosure of a presentence report is mandatory upon request of defendant or defense counsel, except in stated circumstances. See Rule 32(c)(3)(A), Proposed Amendments To The Federal Rules of Criminal Procedure, 42 U.S.L.W. 4551 (April 23,1974).

      . The record discloses the following colloquy between defense counsel and the court at sentencing:
      The Court: Before passing sentence, is there anything you would like to say on her behalf?
      Mr. Ward: Well, first, I would like to know, your Honor, has there been any report filed by the probation office?
      The Court: No, as I indicated, there was not time to have one prepared. I have discussed with the probation officer verbally some matters about her.
      Mr. Ward: To facilitate things, the defendant is rather upset, could I ask a few questions, your Honor, about this ?
      The Court: Ask who a few questions?
      Mr. Ward: Ask the defendant a few questions.
      The Court: All right.
      N.T. 217.
      Defense counsel then proceeded to question the defendant about the circumstances surrounding the crime and the care of her young child. He made a plea to the court to sentence the defendant to the time she had already served and to place her on probation for the remainder of any further sentence. He then stated: “That is all I have to say, your Honor.” N.T. 217-222.

      . See also, a review of Judge Frankel’s book, appearing in 9 Trial, 43, 44 (November/December, 1973), by the writer of this opinion.

      . Judges Adams and Garth note, too, that in Gregg v. United States, 394 U.S. 489, 492, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969), the Supreme Court stated that it is reversible error for a trial judge to read a presentence report at any time before a verdict is reached in a criminal case.


author: KILEY, Senior Circuit Judge.

text:
    Timothy O’MARA, Appellant, Cross-Appellee, v. PETERSEN SAND & GRAVEL COMPANY, INC., Appellee, Cross-Appellant.
    No. 73-1620, 73-1621.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 22, 1974.
    Decided May 7, 1974.
    Elmer Gertz and Wayne B. Giampietro, Chicago, 111., Gerson I. Gluck, Waukegan, 111., for O’Mara.

      Robert E. Kopp and Robert Greenspan, U. S. Dept, of Justice, William J. Kilberg, Solicitor of Labor, Harold C. Nystrom, Associate Solicitor, Bobbye D. Spears, William H. Berger, Attys., Dept, of Labor, Washington, D. C., for amicus curiae.
    Kenneth J. Glick, Libertyville, III, Ronald S. Barliant, Chicago, 111., for Petersen Sand & Gravel.
    Before KILEY, Senior Circuit Judge, SPRECHER, Circuit Judge, and JAME-SON, Senior District Judge.

       Senior District Judge William J. Jameson of the District of Montana is sitting by designation.

   KILEY, Senior Circuit Judge.

The district court, by virtue of its power under the Military Service Act (Act), entered judgment (a) ordering issuance of a mandatory injunction to compel defendant Petersen to reinstate plaintiff O’Mara to the position held by him prior to his induction into service; and (b) denying O’Mara’s motion for damages. O’Mara has appealed from the judgment denying his motion, and Petersen has cross-appealed from the judgment ordering the injunction. We reverse the judgment in so far as it denies the motion for damages, and affirm the judgment in so far as it mandates reinstating O’Mara.

On September 1, 1968, Petersen employed O’Mara as a scalemaster. A year later O’Mara entered military service. Prior to his honorable discharge therefrom in February, 1972, he twice wrote Petersen requesting reemployment. In March, 1972, while his father-in-law was holding the scalemaster position, O’Mara personally applied, and Petersen told him that he “didn’t even want to talk to [O’Mara].”

At the intercession of the Department of Labor, Petersen rehired O’Mara in June, 1972, as a common laborer. A month and a half later, after the Department of Labor again interceded, Petersen agreed in writing to reinstate O’Mara as scalemaster on September 1, 1972, when O’Mara’s father-in-lav/ was to leave the position. Petersen subsequently reneged on his promise and gave the position to his son. He told O’Mara that he would never regain his position as scalemaster.

O’Mara quit the laborer’s job on January 25, 1973, found other employment in February, and subsequently filed the suit before us. The district court held a hearing and found that Petersen had wrongfully deprived O’Mara of reemployment as scalemaster in violation of the Act. The court ordered his reinstatement as scalemaster for a period of ten months, but denied his motion for monetary damages. The appeal and cross-appeal followed.

A.

The district court correctly rejected Petersen’s contention that O’Mara had wáived his right to reinstatement.

Section 459(b) is unambiguous. By its terms, when O’Mara “ma[de] application for reemployment,” Petersen was required to “restor[e] [him] to such [pre-service] position . ” There is no requirement that he specify the scalemaster position in his application.

Nor did O’Mara waive his right by accepting the laborer’s job. “A waiver by a veteran of his statutory rights must be clearly and unequivocally indicated.” Loeb v. Kivo, 169 F.2d 346, 349 (2nd Cir. 1948). The record here contains neither a clear nor unequivocal indication of waiver. The decisions in Hastings v. Reynolds, 165 F.2d 484 (7th Cir. 1947), and Walsh v. Chicago Bridge & Iron Co., 90 F.Supp. 322 (N.D.Ill. 1949), relied on by Petersen, are inapposite. In Hastings the veteran voluntarily entered into an employment contract with his employer’s successor which was subsequently terminated. In Walsh the veteran accepted a different position than the one he left, and remained in it for three years without complaint. Furthermore, O’Mara did not improperly fail to mitigate damages by quitting in January, as Petersen argues. He was not required to continue as a laborer, a position inferior to the position as scale-master. Fessler v. Reading, 138 F.Supp. 202 (E.D.Pa.1955); Loeb v. Kivo, supra.

There is no claim that O’Mara was not “still qualified.” Even if he received “like pay” as laborer, that is not conclusive. He was entitled also, under § 459(b) (B)(i), to like “status.” And the fact that his father-in-law was acting scalemaster during O’Mara’s service as laborer cannot support a waiver claim, in the light of O’Mara’s repeated requests for the position, and Petersen’s rejection of those requests and breach of his written agreement.

We find no merit in Petersen’s contention that the district court’s injunction compelling O’Mara’s reinstatement for ten months is excessive. Section 459(c)(1) specifically provides that the veteran “shall not be discharged from such [pre-service] position without cause within one year after such restoration.” The one year period runs from May 15, 1973, the date of the order, not from February 29, 1972, the date of O’Mara’s military discharge, or March 8, 1972, the date O’Mara personally applied for reinstatement. To hold otherwise would penalize O’Mara for Petersen’s unlawful conduct. The facts herein are not akin to the “extraordinary” circumstances in Travis v. Schwartz Manufacturing Co., 216 F.2d 448 (1954), that led this court therein to deny a one year reinstatement to a veteran.

B.

We agree with O’Mara’s contention that the district court abused its discretion in denying, without a hearing, his motion for damages resulting from lost wages. We reverse the denial of that motion and remand this part of the judgment to the district court for a hearing on O’Mara’s claim.

The Act, in § 459(d), provides that “the district court . . . shall have power ... to require [the] employer ... to compensate [the veteran] for any loss of wages or benefits suffered by reason of such employer's unlawful action.” Although an award of damages is within the discretion of the court, the Act is to be construed liberally so as to benefit the veteran. Power v. Northern Illinois Gas Co., 388 F.2d 427, 429 (7th Cir. 1968). As the Supreme Court has stated, “[h]e is not to be disadvantaged by serving his country.” McKinney v. Missouri-Kansas Texas Railroad Co., 357 U.S. 265, 270, 78 S.Ct. 1222, 1226, 2 L.Ed.2d 1305 (1958). In accord Accardi v. Pennsylvania Railroad Co., 383 U.S. 225, 86 S.Ct. 768, 15 L.Ed.2d 717 (1966).

In Teamsters Local 612 v. Helton, 413 F.2d 1380 (1969), the Fifth Circuit held that the district court abused its discretion in failing to award damages to a veteran who had been denied reinstatement, notwithstanding the fact that all parties had acted in good faith. We agree with the Helton decision and hold that the district court abused its discretion in denying outright O’Mara’s claim for damages.

O’Mara is not precluded from compensatory damages because his laborer’s salary was the same as a scale-master’s. O’Mara claims damages for Petersen’s refusal to rehire him from March 8 to June 27, 1972 ($4,111.00), lost overtime from September 1, 1972 to January 25, 1973 ($475.75), and loss due to change of employment ($3,222.50) — a total of $7,809.25. The district court is directed on remand to conduct a hearing on O’Mara’s claimed damages, giving Petersen an opportunity to contest them.

Affirmed in part and reversed in part and remanded.

      . 50 U.S.C. App. § 459.

      . The district court’s order has been stayed pending the outcome of this appeal.

      . Although the district court therefore erred in ordering O’Mara’s reinstatement for ten months rather than twelve months, O’Mara has not challenged the length of reinstatement, and so we will not order reinstatement for twelve months.

      . See Teamsters Local 612 v. Helton, 413 F. 2d 1380, 1385 (5th Cir. 1969).

      . Levine v. Berman, 178 F.2d 440 (7th Cir. 1949); Doane Co. v. Martin, 164 F.2d 537 (1st Cir. 1947).

      . See also Van Doren v. Van Doren Laundry Service, Inc., 162 F.2d 1007 (3rd Cir. 1947).


author: MATTHES, Senior Circuit Judge.

text:
    Lidia PEDROZA-SANDOVAL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 73-2048.
    United States Court of Appeals, Seventh Circuit.
    Argued May 23, 1974.
    Decided June 25, 1974.
    John F. Ebbott, Milwaukee, Wis., for petitioner.
    John L. Murphy, Chief, Government Regulations Section, Crim. Div., Mary Jo Grotenrath, Atty., Dept, of Justice, Washington, D. C., for respondent.
    Before CUMMINGS and TONE, Circuit Judges, and MATTHES, Senior Circuit Judge.

       Senior Circuit Judge M. C. Matthes, Eighth Circuit, is sitting by designation.

   MATTHES, Senior Circuit Judge.

Petitioner, Lidia Pedroza-Sandoval, is before this court to seek review of an order of the Immigration and Naturalization Service on May 7, 1973, commanding petitioner, a citizen of Mexico, to voluntarily depart from the United States or be deported to Mexico. Petitioner also attacks the affirmance of the INS order by the Board of Immigation Appeals on November 9, 1973. Jurisdiction of this court is founded upon 8 U. S.C. § 1105a(a).

Petitioner was born in Mexico in 1952. In 1955 her natural mother became ill and an aunt, Maria Mendez, assumed care of the petitioner. In August, 1971, when petitioner was 18, a formal adoption decree was filed in Mexico declaring that she was the adopted daughter of the aunt, who is a resident alien in the United States.

On July 9, 1971, petitioner entered the United States as a nonimmigrant visitor authorized to remain in this country until August 9, 1971. On April 4, 1973, she was apprehended by INS officers for failing to depart in August 1971.

At a deportation hearing on May 3, 1973, petitioner sought “adjustment of status” pursuant to 8 U.S.C. § 1255 as an immediate relative of a United States resident alien; that is, the adopted daughter of her aunt, Maria Mendez. 8 U.S.C. § 1153. The Immigration Judge refused to consider the immediate relation petition because petitioner, as a native of a country in the western hemisphere, was ineligible for adjustment of status under § 1255. Since petitioner could show no other grounds precluding a finding of deportability, the Immigration Judge ordered her to depart or be deported.

The Board of Immigration Appeals dismissed an appeal from the order of the Immigration Judge. The Board made the further finding that petitioner could not be considered the “child” of Maria Mendez as that term is defined in the immigration laws, and therefore could not qualify as an immediate relative under § 1153, because she was not adopted by her aunt before the age of 14.

Section 1255 of Title 8 provides that the Attorney General in his discretion may adjust the status of an alien admitted into the United States to that of an alien lawfully admitted for permanent residence, if certain requirements are met. Section 1255(c), however, explicitly states that, “The provisions of this section shall not be applicable to any alien who is a native of any country of the Western Hemisphere. . . .”

The primary contention of the petitioner is that the denial to certain immigrants of the right to invoke the provisions of § 1255 because of their nativity in the western hemisphere is a denial of equal protection of the laws, in contravention of the due process clause of the fifth amendment.

Although aliens enjoy certain fundamental constitutional rights while in the United States, it is long established doctrine that Congress has broad powers, subject only to very limited judicial review, in legislating on the matter of immigration laws and naturalization policies. See, e. g., Kleindienst v. Mandel, 408 U.S. 753, 765-767, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972); Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954); The Chinese Exclusion Case, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889). The reason for the judicial recognition of this broad legislative power of Congress in regulating the admission and exclusion of aliens was explained in Harisiades v. Shaughnessy, 342 U.S. 580, 588-589, 72 S.Ct. 512, 519, 96 L.Ed. 586 (1952):

“It is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”

Consequently, courts have held in cases involving varied factual circumstances that it is within the power and authority of Congress in legislating on immigration and naturalization to distinguish between natives of countries in the western hemisphere and natives of nations in the eastern hemisphere or even natives of dependent regions in this hemisphere. See, e. g., Faustino v. INS, 432 F.2d 429 (2d Cir. 1970), cert. denied, 401 U.S. 921, 91 S.Ct. 909, 27 L.Ed.2d 824 (1971); Hitai v. INS, 343 F.2d 466 (2d Cir.), cert. denied, 382 U.S. 816, 86 S.Ct. 36, 15 L.Ed.2d 63 (1965); Buckley v. Gibney, 332 F.Supp. 790 (S.D.N.Y.) aff’d, 449 F.2d 1305 (2d Cir. 1971), cert. denied, 405 U.S. 919, 92 S.Ct. 946, 30 L.Ed.2d 789 (1972). See also Talanoa v. INS, 397 F.2d 196, 201 (9th Cir. 1968).

The legislative history indicates that § 1255 was amended in 1965 to disable western hemisphere natives from using the section to adjust their immigration status because Congress perceived a “recurring problem” of natives of Central and South American lands, who usually can reach the United States more easily than eastern hemisphere natives, coming to this country as nonimmigrant visitors and promptly seeking permanent residence status under § 1255. See S.Rep.748, 89th Cong., 1st Sess., 1965 U.S.Code Cong. & Admin. News 3328 et seq. Congress could reasonably enact remedial legislation to curtail this perceived abuse of the immigration laws. It is not within the province of the judiciary to disturb such a policy decision by Congress.

The orders of the Immigration Judge and the Board of Immigration Appeals are affirmed.

      . Our ruling that § 1255 is a valid exercise of Congressional power eliminates tlie necessity to consider petitioner’s attack upon the finding of the BIA that she was not the “child” of Maria Mendez, since § 1255 bars any attempt by petitioner to seek adjustment of status as the immediate relative of Maria Mendez.
      Likewise, we do not consider petitioner’» contention that she is excluded from the visa provisions of 8 U.S.C. §§ 1151 and 1153 as a “special immigrant” and that such exclusion is a violation of the fifth amendment due process clause: § 1255 does not allow petitioner to seek adjustment of status under the provisions of §§ 1151 and 1153.


author: PER CURIAM.

text:
    Adron P. BRAINERD, Plaintiff-Appellant, v. Warren W. BEAL and Robert O. Dunn, Defendants-Appellees.
    No. 73-1382.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 11, 1974.
    Decided May 20, 1974.

      Richard M. Kates, Chicago, 111., for plaintiff-appellant.
    Gary M. Elden, Chicago, 111., for defendants-appellees.
    Before SWYGERT, Chief Judge, KI-LE Y, Senior Circuit Judge, and CUMMINGS, Circuit Judge.
   PER CURIAM.

Plaintiff Brainerd has appealed from a judgment dismissing his amended complaint for failure to state a claim upon which relief could be granted, and, in the alternative, because it was barred by the Illinois statute of limitations. We dismiss the appeal.

The complaint was based upon alleged violations by defendant bank officers of 18 U.S.C. § 1005 through issuance of a cashier’s check without authorization, and the making of false entries in bank records with intent to defraud. These violations would, if proved, render the defendants individually liable for damages under 12 U.S.C. § 503.

The district court’s judgment was rendered on January 30, 1973, and the docket sheet prepared by the clerk of the court lists entry of that judgment on January 30, 1973. The notice of appeal stated it was “from the order dismissing the amended complaint entered in this action on the 30th day of January, 1973.” However, the notice was not filed until March 2, 1973, a date not within thirty days from January 30. Rule 4(a) Federal Rules of Appellate Procedure. We hold that Brainerd’s notice of appeal was not timely filed and that we are therefore without jurisdiction to entertain the appeal. Rule 3(a) Federal Rules of Appellate Procedure; Washington v. United States, 450 F.2d 945 (3rd Cir. 1971); Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 303 F.2d 609 (7th Cir. 1962).

Brainerd misplaces his reliance upon unsworn affidavits signed by a deputy clerk of the district court stating that, based on “normal business practices,” an entry dated January 30 would have been made on January 31 or February 1. The affidavits contradict the docket, as certified to us by the clerk of the court, which stated: “I, H. Stuart Cunningham, Clerk of the United States District Court for the Northern District of Illinois, do hereby certify . that the documents submitted are the original papers filed and entered of record in my office on the dates designated in the List of Documents . . . . ” (Emphasis added.) Furthermore, the district court’s docket cannot be impeached by affidavit. Wall v. United States, 97 F.2d 672 (10th Cir. 1938), cert. denied, 305 U.S. 632, 59 S.Ct. 104, 83 L.Ed. 405 (1938). Accordingly, we disregard the affidavits since the practice of permitting an affidavit to change the docket date would create confusion in docketing of judgments.

Our holding may appear harsh; yet in Washington v. United States, supra, the notice of appeal was filed but one day late. Were we to entertain appeals whose notices were filed one day late, in the absence of circumstances warranting a relaxation of the rule, there would be no rationale for not allowing appeals whose notices were filed two days or five days late. Mechanical rules “must be mechanically applied in order to avoid [the] uncertainties” that arise when exceptions are made. United States v. Indrelunas, 411 U.S. 216, 222, 93 S.Ct. 1562, 1565, 36 L.Ed.2d 202 (1973).

Appeal dismissed.

      . § 503. Liability of directors and officers of member banks.
      If the directors or officers of any member bank shall knowingly violate or permit any of the agents, officers, or directors of any member bank to violate any of the provisions of this section or regulations of the board made under authority thereof, or any of the provisions of sections 217, 218, 219, 220, 655, 1005, 1014, 1906, or 1909 of Title 18, every director and officer participating in or assenting to such violation shall be held liable in Iris personal and individual capacity for all damages which the member bank, its shareholders, or any other persons shall have sustained in consequence of such violations. As amended Sept. 3, 1954, c. 1263, § 28, 68 Stat. 1236.

      . One judge of this panel, sitting as motion judge, twice denied, prior to oral argument, defendants’ motions to dismiss the appeal as untimely filed. However, the court’s ruling that it has jurisdiction is always subject to reconsideration.

      . While Brainerd offers no excuse for late filing, lie requests a remand for the district court to determine “whether any untimeliness was excusable. . . . ” We refuse, Evans v. Jones, 366 F.2d 772 (4th Cir. 1966) ; and Reed v. People of State of Michigan, 398 F.2d 800 (6th Cir. 1968), cited by Brainerd, are inapposite, since in both of those cases the possible “excusable neglect” of appellants was apparent in the record.


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Russell Edward WEBB, Appellant.
    No. 73-2336.
    United States Court of Appeals, Fourth Circuit.
    Argued June 3, 1974.
    Decided June 27, 1974.
    Girard C. Larkin, Norfolk, Va. [Sacks Sacks & Tavss, Norfolk, Va., on brief], for appellant.
    J. Brian Donnelly, Asst. U. S. Atty. [Brian P. Gettings, U. S. Atty., E.D.Va., on brief], for appellee.
    Before BUTZNER, RUSSELL, and WIDENER, Circuit Judges.
   PER CURIAM:

Russell Edward Webb, appealing from a judgment of conviction for obstruction of correspondence, 18 U.S.C. § 1702, challenges the sufficiency of the evidence to sustain the jury’s verdict.

■ The record disclosed that a navy allotment check, drawn in Cleveland, Ohio, should have been delivered^ in the ordinary course of the mails to the payee in Portsmouth, Virginia, on June 1, 1971. However, on that date instead of being received by the payee, the check was cashed with a forged endorsement at a bank in nearby Suffolk, Virginia. Webb was neither known to the payee nor authorized to handle the check, but his outer left-hand palm print was the only-identified latent print on the check. Webb’s print was located on the face of the check near the left edge.

We conclude that Webb’s unexplained placing of his palm print on the check during the short period between the time it should have been received by the payee and the time it was unlawfully cashed was sufficient for the jury to infer that Webb acted “with design to obstruct the correspondence” in violation of § 1702. His palm print could have been placed on the check only during the commission of the crime. He claimed no access to it while it was in the custody of the postal service or after it had been cashed at the bank. Cf. Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); United States v. Owens, 424 F.2d 266 (6th Cir.), cert. denied, 400 U.S. 844, 91 S.Ct. 89, 27 L.Ed.2d 81 (1970); United States v. Wade, 364 F.2d 931, 934 (6th Cir. 1966); Doub v. United States, 341 F.2d 572 (9th Cir. 1965).

Affirmed.


author: EDWARDS, Circuit Judge.

text:
    In the Matter of TENNESSEE CENTRAL RAILWAY CO., Debtor. LOUISVILLE & NASHVILLE RAILROAD COMPANY, and Eleven Other Interline Freight Balance Claimants, Petitioners-Appellants, v. UNITED STATES of America and A. Battle Rodes, Trustee, Respondents-Appellees.
    No. 73-2040.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 4, 1974.
    Decided June 14, 1974.
    David M. Keeble and Gareth S. Aden, Nashville, Tenn., for petitioners-appellants; Hooker, Keeble, Dodson & Harris, Nashville, Tenn., William F. Bunn, Chicago, 111., Duncan B. Phillips, Washington, D. C., Philip M. Lanier, Louisville, Ky., on brief.
    James F. Dausch, Dept, of Justice, for respondents-appellees; Irving Jaffe, Acting Asst. Atty. Gen., Charles H. Anderson, U. S. Atty., Morton Hollander, David J. Anderson, Attys., Dept, of Justice, Washington, D. C., on brief.
    Before WEICK, EDWARDS and PECK, Circuit Judges.
   EDWARDS, Circuit Judge.

This case really represents a belated motion for reconsideration of this court’s decision entitled In re Tennessee Central Railway Co., 463 F.2d 73 (6th Cir.), cert. denied sub nom. Louisville & Nashville R. R. Co. v. Rodes, 409 U.S. 893, 93 S.Ct. 119, 34 L.Ed.2d 150, rehearing denied, 409 U.S. 1029, 93 S.Ct. 459, 34 L.Ed.2d 323 (1972). There, on the theory of an equitable priority as to operating costs involved in the six months prior to bankruptcy, the railroads, who are appellants in this instance, sought priority over the claims of the United States Government which originated with a long unpaid RFC loan and mortgage. This court upheld the government priority under 31 U.S.C. § 191 (1970), and certiorari was denied by the United States Supreme Court, as shown in the citation above.

Subsequent thereto the railroads petitioned the United States District Court, to whom the matter had been remanded for distribution of the proceeds, seeking delay in the distribution of the assets and propounding a theory upon which they had not previously relied, namely, that the interline freight balances (totaling approximately $900,-000) were “trust funds.” The District Judge, on grounds of res judicata, and the principles of judicial economy, rejected the petition in a well-reasoned memorandum.

On appeal appellants point out to us that between the time of the District Court decision and the argument of this case on appeal, the Third Circuit, sitting in banc, has reversed a preceding ruling in a case called In re Penn Central Transportation Co., 486 F.2d 519 (3d Cir. 1974), and has held that railroad interline balances are trust funds. Since the District Court decision in this case, the Supreme Court has denied certiorari in the Penn Central case, sub nom. Baker v. Indiana Harbor Belt R.R. Co., 415 U.S. 990, 94 S.Ct. 1588, 39 L.Ed.2d 886 (1974). Appellants also argue that the doctrine of res judicata does not apply to bankruptcy proceedings when the proceeds have not been distributed.

We note that the trust fund theory was presented to the United States Supreme Court in the railroad’s petition for certiorari in the instant case. The Supreme Court denied that petition without opinion, as shown in the citation above.

The Third Circuit’s in banc opinion in the Penn Central case is, of course, entitled to our respect. It would not be binding upon us, however, even if this case were still properly before this court on the merits. In our instant case there has been no decision by the Supreme Court which conflicts in any way with this court’s original decision.

Clearly the trust fund theory on which appellants now seek to rely could have been, but was not, presented in the original appeal. See IB J. Moore, Federal Practice fí 0.405, at 628 (2d ed. 1974).

When a disputed claim in a bankruptcy proceeding has been litigated to final judgment, it is subject to the principle of res judicata. Heiser v. Woodruff, 327 U.S. 726, 66 S.Ct. 853, 90 L.Ed. 970 (1946); IB J. Moore, Federal Practice fí 0.419 [3.-1], at 2964. We have read In re Inland Gas Corp., 187 F.2d 813 (6th Cir. 1951), and consider it completely inapposite.

We agree with the District Judge that litigation must end somewhere. The principles of res judicata would govern disposition of this case, even if there had been (as there is not here) a change in controlling case law. Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940); Clouatre v. Houston Fire & Casualty Co., 229 F.2d 596 (5th Cir. 1956); 1B J. Moore, Federal Practice f[ 0.415, at 2051-58.

The judgment of the District Court is affirmed.

      . The instant action -was filed in the United States District Court for the Middle District of Tennessee, Nashville Division, and styled “Petition of Louisville and Nashville Railroad Company, Illinois Central Railroad Company, Southern Railroad Company, et al., to Delay the Distribution of Assets to Claimants in Above Proceedings.”


author: BALDWIN, Judge.

text:
    LONE STAR MANUFACTURING CO., INC., Appellant, v. BILL BEASLEY, INC., Appellee.
    Patent Appeal No. 9201.
    United States Court of Customs and Patent Appeals,
    July 3, 1974.
    Wofford, Felsman & Fails, Fort Worth, Tex., attorneys of record, for appellant; Dennison, Dennison, Townshend & Meserole, Arlington, Va., of counsel.
    Howard E. Moore, Dallas, Tex., attorney of record, for appellee.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Associate Judges.
   BALDWIN, Judge.

This appeal is from the decision of the Trademark Trial and Appeal Board dismissing an opposition to appellee’s application to register FROSTY AIR, the word AIR being disclaimed, for air conditioners for automobiles, trucks, mobile trailers, and refrigerated trailers. Appellant asserts that appellee’s mark so resembles appellant’s mark for automobile air conditioners, FROSTEMP, used by appellant prior to appellee’s asserted first use, as to be likely to cause confusion, mistake, or deception.

Appellant introduced evidence including testimony of its president, Holt Hickman, one of its distributors, James Burton, and documentary exhibits. Appellee took no testimony and thus is restricted to its filing date for first use.

Appellant’s documentary exhibits establish priority of use of its mark, FROSTEMP, since as early as 1964. The record shows that its product is marketed throughout a substantial portion of the United States by more than two hundred distributors and several thousand retail outlets. Its sales have amounted in value to approximately $20,000,000 and it has spent about $300,000 in promoting its product.

Mr. Burton, appellant’s distributor, testified that on one occasion an owner of a FROSTY AIR air conditioner drove into his FROSTEMP dealership in Ft. Worth, Texas, seeking to have his air conditioner repaired. The air conditioner was still under the FROSTY AIR warranty. Mr. Burton called appellee to request an authorization to perform the repair work and to charge the cost of the repairs to appellee. After the authorization was given, the air conditioner was repaired and the bill was sent to appellee. The signed work order for this repair job constituted appellant’s exhibit No. 1.

Mr. Burton further testified that on “five or six, [or] eight” other occasions owners of FROSTY AIR air conditioners came into his Dallas, Texas, service center, which is “three or four blocks” from appellee’s place of business, seeking to have their air conditioners serviced. As to those prospective customers, no records were kept. In addition to a sign on his Dallas location reading “Four Seasons of Dallas,” there is a six by eight foot FROSTEMP sign on the corner of the building, and Mr. Burton is listed in the Yellow Pages as a FROSTEMP distributor and service center. However, Mr. Burton acknowledged that his Dallas service center will service any brand of automobile air conditioners.

Mr. Hickman, appellant’s president, testified that the only specific incident of confusion he was aware of, other than the incident at Mr. Burton’s Ft. Worth dealership, occurred in California. Both appellant and appellee purchase the FREON used in their air conditioners from the same supplier, who applies the appropriate mark to the FREON containers. On one occasion, a FROSTEMP customer located in California received FROSTY AIR FREON.

The Trademark Trial and Appeal Board commented upon the testimony of Mr. Burton by stating:

[i]t is clear enough from the testimony of this witness, however, and as stated by opposer in its brief, that
“. . . with respect to service and repair work, automobile air conditioner owners do not exercise discrimination and are not careful in where they stop for warranty or service work. They simply when they have a problem try to get it fixed the quickest and easiest way.” [sic]
Such being the ease, and in the absence of any testimony by the customer in question, it cannot here be assumed that the taking of their air conditioners to Mr. Burton for service was occasioned by any similarity between the marks rather than to outright carelessness on their part or to some other circumstance.

The board, in dismissing the opposition, held that:

[i]nsofar as the marks are concerned, they differ substantially in both sound and appearance; and' while they are similarly suggestive of the nature of the goods to which they are applied, the similarity between them in this respect is considered not to be such as would give rise to a likelihood of confusion or mistake or deception.

OPINION

After having carefully reviewed the record and the arguments of counsel, we are convinced that the board erred in dismissing the opposition.

The parties have argued at length the issue of what is the dominant portion of each mark and have thus attempted to dissect their respective marks. However, we must view the marks in their entireties in determining whether a likelihood of confusion exists. Clairol Incorporated v. Roux Laboratories, 442 F.2d 980, 58 CCPA 1170 (1971).

Appellee has referred to a number of third party registrations which, appellee submits, indicate that appellant’s mark is a weak mark entitled to a narrow scope of protection. While third party registrations are to be considered, they are of little help and do not control our determination of whether the marks are so similar that they are likely to cause confusion, mistake, or deception. Clairol Incorporated v. Roux Laboratories, supra.

Appellee further relies upon several prior decisions of this court involving other marks, particularly L. J. Mueller Furnace Co. v. United Conditioning Corp., 222 F.2d 755, 42 CCPA 932 (1955), as being determinative of the instant controversy. However, “[p]rior decisions on different marks used under different circumstances are of little value in deciding a specific issue of likelihood of confusion.” Jaquet-Girard, S. A. v. Girard Perregaux & CIE., S.A., 423 F.2d 1395, 57 CCPA 996 (1970).

Appellant has proven prior and extensive use of its FROSTEMP mark and shown substantial sales prior to appellee’s first use of its mark, FROSTY AIR. The goods are identical, are in direct competition with one another, and are purchased by the same class of purchasers. Although the board correctly found that the marks “are similarly suggestive of the nature of the goods to which they are applied,” we further find that the marks, when applied to automobile air conditioners, convey to prospective purchasers the same idea, same mental reaction, and same meaning. Proctor & Gamble Co. v. Conway, 419 F.2d 1332, 57 CCPA 865 (1970).

While lack of evidence of actual confusion or mistake does not preclude a finding of likelihood of confusion, In re Calgon Corp., 435 F.2d 596, 58 CCPA 830 (1971), there is testimony of record here which tends to show a degree of actual confusion and mistake among customers. The degree to which this confusion and mistake have been shown may only be minor; however, appellee had only one place of business and his channels of product distribution were not yet of the size of appellant’s. The board’s hypothesis as to how the instant incident of customer confusion may have occurred does not negate its existence. Furthermore, any doubts as to the existence of a likelihood of confusion are to be resolved in favor of the prior user.

For the foregoing reasons the decision of the Trademark Trial and Appeal Board is reversed.

Reversed.

MARKEY, Chief Judge, dissents.

      . 176 USPQ 426 (1973).

      . Application serial No. 341,781, filed October 27, 1969, alleging first use on July 1, 1969.

      . Strangely enough, two of these marks are FROS-T-Air, Reg. No. 358,978, issued July 26, 1938, and FROS-T-AIRE, Reg. No. 671,549, issued December 23, 1958, both for air conditioning units.