author: STEVENS, Circuit Judge.

text:
    Richard M. BARANCIK et al., Plaintiffs-Appellees, v. INVESTORS FUNDING CORPORATION OF NEW YORK, a New York corporation, and Invesco Holding Corporation, a New York corporation, Defendants-Appellants.
    No. 73-1302.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 17, 1973.
    Decided Nov. 5, 1973.
    Granvil I. Specks, Chicago, 111., Raymond Shack, New York City, for defendants-appellants.

      Jerome H. Torshen, Chicago, 111., for plaintiffs-appellees.
    Before PELL and STEVENS, Circuit Judges, and CHRISTENSEN, Senior District Judge.

       Senior District Judge A. Sherman Christensen of the District of Utah is sitting by designation.

   STEVENS, Circuit Judge.

The question presented by this appeal is whether the anti-injunction statute, 28 U.S.C. § 2283, prohibits a federal court from staying proceedings in a state court which were not commenced until after a motion to enjoin the institution of such proceedings was filed. We hold that § 2283 does not apply.

I.

To understand the issue on appeal we need only briefly describe the basic transaction' between the parties, the matters in dispute between them, and the chronology of court proceedings that led to the entry of the preliminary injunction.

In 1969 plaintiffs were the beneficial owners of real estate at 100 East Bellevue Place in Chicago which they intended to improve by constructing a high rise residential building. They retáined defendant Dwinn-Shaffer and Company, a mortgage broker, to arrange financing of approximately $7,300,000. Of this amount, $6,100,000 was provided in the form of a loan from the Prudential Life Insurance Company secured by a first mortgage, and $1,000,000 was provided by defendant Investors Funding Corporation of New York (IFC) as the purchaser-lessor in a so-called sale and lease back transaction. At'the closing in 1971, title to the premises was conveyed to IFC in exchange for the purchase price of $1,000,000 and the execution of a 99-year lease. Thus, plaintiffs’ right to possession, which derived from their status as beneficial owners prior to the closing, thereafter depended on their performance as tenants of the terms and conditions of the lease.

In due course disputes arose relating to plaintiffs’ obligation to make monthly deposits for real estate taxes, to remit portions of security deposits by subles-sees, and to discharge mechanic’s and materialman’s liens. Moreover, plaintiffs allegedly became aware of the fact, unknown prior to the closing, that defendant IFC owned an 8% interest in defendant Dwinn-Shaffer.

On April 25, 1972, plaintiffs filed suit in the federal court. In Count I they alleged that the failure to disclose the affiliation between IFC and Dwinn-Shaffer, the mortgage banker they had retained as their agent, was a violation of Rule 10b-5 promulgated pursuant to the Securities Exchange Act of 1934. Plaintiffs’ complaint stated that the proceeds of the sale-lease back transaction were being tendered to defendant’s escrowee, and prayed for a rescission of that transaction, a judgment for interest on certain funds held by or at the direction of defendants, and for costs. In Counts II and III of the complaint, plaintiffs based federal jurisdiction on diversity of citizenship, raised the state law' issues in dispute, and prayed for damages and a declaratory judgment.

On June 23, 1972, before responding to the complaint, defendants served a formal notice of default on plaintiffs, stating that unless deposits totaling $131,054.88 were remitted within seven days and all liens discharged, defendants would proceed to exercise all of their rights under the law and as set forth in the lease.

On June 30, 1972, defendants filed a motion to dismiss the complaint. The motion was supported by affidavits and gave rise to various filings by both parties directed to the merits. The motion was ultimately denied.

On July 27, 1972, plaintiffs filed the motion which eventuated in the entry of the injunction before us. In that motion plaintiffs recited the matters claimed by defendants to constitute defaults, denied that any default existed, asserted that the issues raised by the claims of default had also been raised by the federal complaint and the defendants’ motion to dismiss, and requested the court to restrain defendants from commencing any separate legal action arising out of the subject matter of the pending ease, or taking any other action to the detriment of the reputation of the 100 East Bellevue building as a luxury high rise apartment.

During the period between July 27, 1972, and January 5, 1973, both parties filed various papers relating to the pending motions, and, at the direction of the court, endeavored to resolve as many of their differences informally as possible. The trial judge was engaged in a protracted criminal trial at this time and postponed ruling on the outstanding motions while settlement discussions were held. On January 5, 1973, he entered an order directing the parties to make a report on January 16, 1973, on the status of the questions raised by the request for interlocutory relief.

On January 11, 1973, defendants filed a forcible entry and detainer action in the Municipal Court of Chicago, alleging that plaintiffs were in default under the lease and seeking possession of the premises. Trial of that peremptory action was set for January 25,1973.

On January 16, 1973, the parties appeared in the federal district court, advised the judge of the new development, and were ordered to file additional mem-oranda by January 19, 1973.

On January 25, 1973, the day before the state trial was to commence, the district court enjoined defendants from prosecuting any proceeding to adjudicate the interests of the parties in the real estate at 100 East Bellevue or from selling or otherwise disposing of any interest in that land until further order of court.

The district court filed a memorandum explaining the reasons for the issuance of the injunction. The court held that § 2283 was not applicable to a .state court proceeding which was not commenced until after the federal action. Moreover, since the federal action sought to adjudicate rights and interests in land, the court found that it was necessary to maintain the status quo in order to preserve the court’s ability to grant effective relief; accordingly, it held in the alternative that the statute permitted the federal court to grant an injunction which was “necessary in aid of its jurisdiction.”

II.

The timing of a litigant’s resort to the state court is significant. Timing may affect • the exercise of a federal judge’s discretion; it may also affect his power.

As a matter of discretion, if a litigant, to no avail, has used his best efforts to obtain a ruling on an issue pending in federal court, his initiation of state proceedings may demonstrate nothing more than appropriate diligence. On the other hand, if a defendant has endeavored to delay proceedings or to forestall decision on issues pending in the federal court, a similar act may represent an attempt to obtain a more favorable forum. It may tend to fragment litigation which is best decided as a single matter; it may even evidence disrespect for the federal tribunal.

In this case we have no occasion to consider whether defendants’ timing was a factor that militated in favor of, or against, the entry of the injunction. For we are not asked to review the exercise of the Chancellor’s discretion. It is sufficient to note that plaintiffs’ status quo motion was ripe for decision by the federal court when defendants invoked the jurisdiction of the Municipal Court of Chicago, that neither party charges the other or the court with improper delay while the motion was pending, and that the court was aware of the pen-dency of the state action and weighed its significance before it acted. Neither the record nor the argument advanced by defendants provides any basis for concluding that the district judge abused his discretion.

Defendants’ appeal challenges the power of the federal district court. They argue that unless this case falls within one of the three narrowly defined exceptions to the Anti-Injunction Act, 28 U.S.C. § 2283, the trial court had no authority to stay the state proceedings and we have no alternative but to reverse. Quite clearly, the injunction was not “expressly authorized by Act of Congress”; there was no judgment to “protect or effectuate”; and we assume with defendants that the injunction was not “necessary in aid of [the federal court’s] jurisdiction” (emphasis added). Nevertheless, the applicability of the statute may be avoided by the timing of defendants’ resort to the state forum.

The mere fact that the federal complaint was filed before the state proceeding was commenced is not sufficient to avoid the statutory bar. On the other hand, it is equally clear that since no state action was pending on July 27, 1972, when plaintiffs filed their motion, the statute would not have prevented the federal court from entering an injunction forthwith. The question presented by

this record is whether defendants may obtain the benefit of the statute by commencing state proceeeings while a motion to enjoin such action is pending in the federal court.

The answer to the question, in our view, turns on the mandatory character of the statute. If the statute merely identified a factor for a court to weigh in the exercise of its discretion, that factor would be appropriately evaluated as of the time of the entry of the injunction. But since the statute imposes an absolute ban, circumscribing the federal court’s power to act unless a case falls within one of the explicit exceptions from its command, we believe its applicability must be determined as of the time when the federal court’s injunctive powers are invoked.

Unless the applicability of the statutory bar is determined by the state of the record at the time the motion for an injunction is made, a litigant would have an absolute right to defeat a well-founded motion by taking the very step the federal court was being urged to enjoin.

Under defendant’s reading of the statute, if a federal court took time for fair consideration of the merits of a request for an injunction, the court would deliberate at its peril; its authority to rule on the pending motion could be terminated by the action of one of the litigants. We consider this possibility unseemly. For, as Mr. Justice Frankfurter stated in another context: “Whether a defendant may be brought to the bar of justice is not for the defendant himself to decide.” United States v. United Mine Workers, 330 U.S. 258, 310, 67 S. Ct. 677, 704, 91 L.Ed. 884 (concurring opinion).

The district court has power to maintain the,status quo pending decision on a doubtful question of federal jurisdiction. United States v. United Mine Workers, 330 U.S. 258, 292, 67 S.Ct. 677, 91 L.Ed. 884. During its process of deliberation, the court, not the defendant, should have the ultimate power to determine the scope of its authority. It may be argued that the statute requires the federal court to protect its authority by promptly issuing a temporary restraining order. But such a construction might encourage the liberal granting of the kind of protective orders the statute was intended to prevent. Moreover, it might require the court to take action without notice to the opposing party lest the court’s power be defeated before it can rule with deliberation.

The statute includes a specific exception for injunctions which are necessary in aid of the federal court’s jurisdiction. Even if that exception does not apply to this fact situation, it reflects a congressional purpose to avoid subordinating the exercise of federal judicial power to the will of one of the litigants. We therefore hold that the mandatory prohibition in § 2283 against injunctions staying court proceedings does not apply to state actions commenced after a motion for injunctive relief is filed in the federal court.

Our holding that the statutory bar is inapplicable does not, of course, mean that the federal court should or may ignore “the principles of equity, comity and federalism that must restrain a federal court when asked to enjoin a state court proceeding.” Mitchum v. Foster, 407 U.S. 225, 243, 92 S. Ct. 2151, 2162, 32 L.Ed.2d 705. We do not believe the defendant may acquire an absolute defense to a proper motion by resorting to self help. But the fact that a state proceeding has actually been commenced before the federal court acts on a pending motion is certainly a matter that should weigh heavily in the balance when the judge exercises his discretion to grant or to deny an injunction.

On the record before us we are not at all sure that our exercise of discretion would have led us to the same conclusion as the district court’s. We might have accorded greater weight to the desirability of having the state law issues decided by a state court and less weight to the risk that an immediate transfer of possession would be likely to occur or would impair the effectiveness of relief by way of rescission. But the defendants have not argued, and we are not prepared to hold, that there was an abuse of discretion in entering the injunction in its present form. Since the injunctive order is interlocutory, and since the issues in the federal litigation may be better defined by defendants’ answers to the complaint, it will, of course, be open to the district court to modify the outstanding injunction if it deems such action appropriate.

We merely hold that § 2283 did not prohibit the entry of the order of January 25, 1973. In our view, the commencement of the state action after the filing of the status quo motion, at a time when it was apparent to all concerned that the motion was about to be decided, was merely one factor for the court to consider in exercising its discretion, The interlocutory order is therefore

Affirmed.

      . That section provides: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized b.v Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”

      . We omit description of the features of tlxe financing, such as the 10%' hold back from the Prudential loan and the $200,000 loan secured by a mortgage on the leasehold interest, since those details are not material to the issue raised on appeal.

      . 48 Stat. 891; 15 U.S.C. § 78j(b) ; 17 C.P. R. 240-10-b-5.

      . The full name of the court is Circuit Court of Cook County, Illinois, Municipal Department, First District.

      . “Where the state court proceeding is not yet pending, § 2283 is no bar to the issuance of interlocutory injunction warranted by traditional equitable principles. Moore’s Federal Practice If 0.229 [1]. There is authority which suggests that a state court action is not ‘pending’ when it is instituted subsequent to the federal action wherein an injunction is sought, even though no federal injunction is in effect at the time the state court action is commenced. Dombrowski v. Pfister, 380 U.S. 479, 484, n. 2 [85 S.Ct. 1116, 14 L.Ed.2d 22] (1965) ; McSurely v. Ratliff, 282 F.Supp. 848, 853 (E.D.Ky.1967), appeal dismissed, 390 U.S. 412 [88 S.Ct. 1112, 19 L.Ed.2d 1272] (1968). Such a rule has the salutary advantage of discouraging the unseemly race to the state courthouse which occurred here while the federal court had under consideration a motion for a status quo order.” App. at 167.

      . “Moreover, even if § 2283 were applicable, its language would not prohibit the injunction issued here. Although the federal action is formally a personal one, it essentially seeks to adjudicate rights and interests in land and, as explained above, unless the status quo is maintained there is a risk that the Court’s ability to make plaintiffs whole and effectively grant the remedy of rescission will be impaired. An interlocutory injunction is therefore ‘necessary in aid of [this Court’s] jurisdiction.’ The federal action is in the nature of an action quasi in rem, and a federal court’s implied power to enjoin a subsequent state in rem proceeding to protect its ability to adjudicate its own quasi in rem proeeeding has been preserved by § 2283. Moore’s Federal Practice, j[ 0-218. See also Donovan v. City of Dallas, 377 U.S. 408, 412 [84 S.Ct. 1579, 12 L.Ed.2d 409] (1964), Hyde Construction Co. v. Koehring Co., 10 Cir., 388 F.2d 501 (1968). The instant case is therefore among that category of cases where ‘some federal injunctive relief may be necessary to prevent a state court from so interfering with a federal court’s consideration or disposition of a case as to seriously impair the federal court’s flexibility and authority to decide that case.’ Atlantic C. L. R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 295 [90 S.Ct. 1739, 26 L.Ed.2d 234] (1970).” App. at 167-68.

      . Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226. Nor does the fact that the injunction is addressed to the parties, rather than the state court, avoid the statutory bar. See Peck v. Jenness, 48 U.S. (7 How.) 612, 625, 12 L.Ed. 841; Donovan v. City of Dallas, 377 U.S. 408, 413, 84 S.Ct. 1579, 12 L.Ed.2d 409.

      . The use of the verb “stay” in § 2283 quite clearly describes an order directed to a pending proceeding. Moreover, in Mitchum v. Foster the Court repeatedly described the anti-injunction statuté as a ban against the issuance of a federal injunction against a “pending” state proceeding. See 407 U.S. 225, 226, 228, 229, 230, 231, 92 S.Ct. 2151, 32 L.Ed.2d 705. See also Dombrowski v. Pfister, 380 U.S. 479, 484, n. 2, 85 S.Ct. 1116, 14 L.Ed.2d 22; Younger v. Harris, 401 U.S. 37, 41, 91 S.Ct. 746, 27 L.Ed.2d 669.

      . See, e. g., United States v. Oregon State Medical Society, 343 U.S. 326, 332-334, 72 S.Ct. 690, 96 L.Ed. 978.

      . “For in [Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234] we expressly rejected the view that the anti-injunction statute merely states a flexible doctrine of comity, and made clear that the statute imposes an absolute ban upon the issuance of a federal injunction against a pending state court proceeding, in the absence of one of the recognized exceptions :
      “ ‘On its face the present Act is an absolute prohibition against enjoining state court proceedings, unless the injunction falls within one of three specifically defined exceptions. The respondents here have intimated that the Act only establishes a “principle of comity,”, not a binding rule on the power of the federal courts. The argument implies that in certain circumstances a federal court may enjoin state court proceedings even if that action cannot be justified by any of the three exceptions. We cannot accept any such contention. . . . [We] hold that any injunction against state court proceedings otherwise proper under general equitable principles must be based on one of the specific statutory exceptions to § 2283 if it is to be upheld. . . .’ 398 U.S. 286-287, 90 S.Ct. 1744.
      “It follows, in the present context, that if 42 U.S.C. § 1983 is not within the ‘expressly authorized’ exception of the anti-injunction statute, then a federal equity court is wholly without power to grant any relief in a § 1983 suit seeking to stay a state court proceeding.” Mitchum v. Foster, 407 U.S. 225, 229, 92 S.Ct. 2151, 2155, 32 L.Ed.2d 705.

      . “And if the district court had power to decide whether this case was properly before it, it could make appropriate orders so as to afford the necessary time for fair consideration and decision while existing conditions were preserved. To say that the authority of the court may be flouted during the time necessary to decide is to reject the requirements of the judicial process.” Id. at 310-311, 67 S.Ct. at 704. Frankfurter, X, concurring.


source: Caselaw Access Project

author: BRIGHT, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Wayne Moses FIRE THUNDER, Appellant. UNITED STATES of America, Appellee, v. Reuben Calvin FIRE THUNDER, Jr., Appellant.
    Nos. 73-1312, 73-1313.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 18, 1973.
    Decided Jan. 10, 1974.

      Charles L. Riter, Rapid City, S. D., filed brief for appellant, Wayne Moses Fire Thunder.
    Ken C. Graves, Rapid City, S. D., filed brief for appellant, Reuben Calvin Fire Thunder.
    William F. Clayton; Richard D. Hurd, Edward Carpenter, Asst. U. S. Attys., and William A. Bowen, Law Intern; Sioux Falls, S. D., filed brief for appellee.
    Before LAY, BRIGHT, and WEBSTER, Circuit Judges.
   BRIGHT, Circuit Judge.

The appellants, Wayne Moses .Fire Thunder and Reuben Calvin Fire Thunder, Indians, bring this appeal from a judgment of conviction against each appellant finding both guilty of four counts of aggravated type assaults in violation of 18 U.S.C. § 1153. The incidents took place within Indian country on the Pine Ridge Indian Reservation in South Dakota.

Appellants seek a new trial based on Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973), a ease decided subsequent to the trial but pending this appeal. Appellants assert that a lesser included offense instruction of simple assault or assault and battery should have been submitted to the jury. In light of Keeble, and our recent decision in United States v. Grant, 489 F.2d 27 (8th Cir., 1973), we agree and remand for a new trial.

The indictment charged both defendants and a third defendant, not a party to this appeal, with assaulting John Around Him on January 1, 1972, with dangerous weapons, that is, blunt and cutting instruments, with intent to do bodily harm, in violation of 18 U.S.C. § 1153 and S.D. Compiled Laws Ann. § 22-18-11 (1967), and in a second count with assaulting John Around Him with intent to inflict great bodily injury by striking him with blunt and cutting-type instruments and beating him and kicking him, in violation of 18 U.S.C. § 1153 and S.D. Compiled Laws Ann. § 22-18-12 (1967).

The indictment in counts three and four contained similar charges relating to assaults inflicted at about the same time, upon one Ithamar Chris Hatchett.

The testimony disclosed that the incidents occurred on New Year’s Day, and that the victims of the assaults and the appellants had done a considerable amount of drinking. John Around Him, a person possessing limited visual acuity, testified that he saw Wayne Moses'' hitting victim Hatchett with a guitar. Reuben Calvin admitted striking Hatchett with his hands and other testimony established that Reuben grabbed John Around Him by the neck and pulled him out the door. Police were called and found Hatchett unconscious, lying on the floor in a pool of blood. They found John Around Him staggering around the house with his face covered with blood. A third defendant, who allegedly participated in the assaults, was tried separately. The testimony indicates that this third defendant entered the home where the incidents here in question occurred, carrying a piece of wood. A physician treated Hatchett for lacerations . of the head bruises of the face, and for a skull fracture. This physiean opined that a blunt instrument produced the skull fracture and a cutting object caused the lacerations.

John Around Him sustained bruises of the face which, according to his attending physician, came from a blow from a fist' or blunt instrument and also sustained a laceration of the ear caused by a cutting object of some type.

At the trial, the appellants requested a lesser included offense instruction for simple assault, and assault and battery. See S.D. Compiled Laws Ann. § 22-18-1 (1967). Given the then existing state of the law in this circuit denying precisely the instruction sought, United States v. Keeble, 459 F.2d 757 (8th Cir. 1972); Kills Crow v. United States, 451 F.2d 323 (8th Cir. 1971), the district court properly denied the request. In doing so, however, the court said:

I would like nothing better than to allow you to have it [the lesser included offense instruction] * * *, but I think our existing law does not allow me this luxury, and, therefore, I will abide by what I think is the present law * *

As we have noted, the Supreme Court has reversed this court’s Keeble decision and has directed that in prosecutions under § 1153, defendants are entitled to lesser included offense instructions in appropriate cases. We have already determined that the rule announced in Keeble applies to pending cases, such as the instant one, which, had not yet reached final judgment, when Keeble was decided. United States v. Grant, supra.

It remains for us to determine whether a lesser included offense instruction is appropriate on the facts before us. Here, we look to whether:

the proof on the element or elements differentiating the two crimes * * * {is] sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense. United States v. Grant, supra, 489 F.2d at 31, citing United States v. Whitaker, 144 U.S.App.D.C. 344, 447 F.2d 314, 317 (1971).

Here, as to the assault with dangerous weapon counts, a jury could conclude that Reuben Calvin used only his fists in striking the victim or victims and that Wayne Moses either did not wield the guitar in striking Hatchett or that the guitar did not in fact constitute a dangerous weapon. The jury could also find that the blows producing the serious injuries came from the wooden club carried by the third defendant and that neither of the appellants acted in concert with him or with each other. As to the charges of assaults with intent to inflict great bodily injury on the victims, a jury could find that because of the excessive drinking, the appellants lacked the specific intent necessary to establish the existence of such crimes.

Thus, appellants were entitled to the requested lesser included offense instruction and these cases must be retried. See United States v. Grant, supra.

Reversed and remanded.

      . S.D. Compiled Laws Ann. § 22-18-11 (1967) reads:
      Every person who, with intent to do bodily harm and without justifiable or excusable cause, commits any assault or any assault and battery upon the person of another with any sharp or dangerous weapon or who, without such cause shoots, or attempts to shoot at another, with any kind of firearm, air gun, or any other means, with intent to injure any person although without intent to kill such person is punishable by imprisonment in the state penitentiary not exceeding five years or by imprisonment in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars or by both such fine and imprisonment.

      . S.D. Compiled Laws Ann. § 22-18-12 (1967) reads:
      Whoever assaults another with intent to inflict great bodily injury shall be punished upon conviction thereof by imprisonment in the state penitentiary for not less than one year, nor more than five years, or in the county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment. (Emphasis added.)

      . S.D. Compiled Laws Ann. § 22-18-1 (1967) reads:
      An assault is any willful and unlawful attempt or offer, with force or violence, to do a corporal hurt to another. A battery is any willful and unlawful use of force or violence upon the person of another.

      . We do not mean to imply in any way that the convictions here were unsupported by the evidence. The testimony amply supports the verdicts.


author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    Gordon J. O’BRIEN et al., Plaintiffs-Appellants, v. John R. MORIARTY et al., Defendants-Appellees.
    No. 73-1297.
    United States Court of Appeals, First Circuit.
    Argued Nov. 8, 1973.
    Decided Jan. 9, 1974.

      Nathan Greenberg, Boston, Mass., for plaintiffs-appellants.
    Dennis J. LaCroix, Deputy Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., was on brief, for defendants-appel-lees.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

Five inmates of the Massachusetts Correctional Institution . at Walpole brought suit in the district court under 42 U.S.C. §§ 1983 and 1985 against the Commissioner of Corrections and other state officials. In substance they allege that they occupy individual cells 6 feet wide and 9 feet long in the prison’s isolated maximum security facility; that in front of the cells ’ is a passageway about 4 feet wide and about 120 feet long; that for about, two months prior to a prison disturbance on May 19, 1973, they were given the right to have their cells open from 8 a. m. to 10 p. m. and to fratefnize with each other in the passageway; that since the disturbance, in which they took no part, the open cell policy had been discontinued; arid that being, locked in their cells for the entire day constitutes cruel and unusual punishment • in viplation of the Eighth Amendment. Plaintiffs pray for an injunction restoring the open cell policy.

After, visiting Block 10 at Walpole the district court held an evidentiary hearing, consolidated by stipulation with a trial on the merits, on plaintiffs’ motion for preliminary injunction. F.R.Civ.P. 65(a)(2).. The court took all issues under advisement, including defendants’ earlier-filed ' motion to dismiss, and thereafter dismissed the complaint for failure to state a claim. The court appeal's to have' considered only the facts stated in the complaint and an admission by, plaintiffs’ counsel that his clients wqrfe. “allowed out of their cells, one at a time, for a minimum of one hour per day. During that hour they were allowed to exercise in the corridor and take a shqwer if they sq desired.”

The district court erred proeedurally iri dismissing on the pleadings. Any issues actually tried by express or implied consent. at the hearing on the merits must be “treated in all respects as if they had been raised in the pleadings.” .F.R.Civ.P. 15.. The case should have been decided on the merits; alternatively the court might have told the parties that it would treat the motion to dismiss as one for summary judgment, see F.R.Civ.P. 12(b) and 56, considering the evidence only in order to determine if there was a genuine issue of material fact.

It was undoubtedly better practice in this case to inquire into the facts. But the court was not at liberty after the hearing to dispose of the case on the pleadings alone. Had the hearing revealed a meritorious claim, its mere omission from the complaint would not have allowed dismissal. However, we do not remand as the evidence, viewed most favorably to plaintiffs, does not reveal a claim upon which they are entitled to relief.

Block 10 is arranged in four sections. The plaintiffs’ section, with about 15 cells, is upstairs. Prior to March, 1973, prisoners, except for brief intervals, were locked in their cells continuously. In March, when there were only about seven or eight prisoners in plaintiffs’ section, the cells there were unlocked during all or some of the day and the inmates permitted the freedom of the corridor. Several guards testified that while the cells were open prisoner morale was good; the only untoward incident was a scuffle between plaintiff O’Brien and a medic, with the purported discovery of a knife charged to O’Brien. The testimony as to how many hours of freedom were regularly granted was conflicting, and the then superintendent denied that open doors was a “policy”, as opposed to an informal dispensation. Whether a “policy” or just a practice, it ceased after a serious prison disturbance on May 19, 1973, which, as all acknowledge, did not involve plaintiffs or other Block 10 prisoners. Each Block 10 inmate was thereafter allowed out of his cell for only an hour each day, but he could speak to others during the hour from the corridor. Plaintiffs have been depressed since the open cell policy ceased, and on one occasion in June several inflicted injuries upon themselves.

Prison officials testified that since the spring of 1973 the population of the section where plaintiffs are confined doubled, while the number of guards in Block 10 decreased. Prison officials oppose an open cell policy because of the increase in Block 10 prisoners, because many are disciplinary cases, and because of danger that one prisoner may injure or murder another.

A punishment may be so below civilized norms as to be cruel and unusual no matter what its provocation, or it may be cruel and unusual because extremely disproportionate to the occasion. See Furman v. Georgia, 408 U.S. 238, 271-279, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring). Segregated confinement involving neither intolerable isolation nor inadequate food, heat, sanitation, lighting or bedding, does not fall within the former category. It may be a necessary tool of prison discipline, both to punish infractions and to control and perhaps protect inmates whose presence within the general population would create unmanageable risks.

The record in this case'does not show that plaintiffs’ confinement has been accompanied by inhuman or barbarous conditions. They apparently receive the same food as others; they do not complain of the heat, sanitation, lighting or bedding; they are. allowed out of their cells for an hour daily. One of the plaintiffs admitted to television and some visitation privileges. For a person to be cut off markedly from all others is a privation not to be underestimated, but the conditions here are not so severe as to be per se impermissible.

Nonetheless a punishment not always forbidden may violate the Eighth Amendment if, in the circumstances, it is extremely disproportionate, arbitrary or unnecessary. Furman v. Georgia, supra, 408 U.S. at 238, 279, 92 S.Ct. 2726 (Brennan, J., concurring). Imposed inappropriately, or for too long a period, even the permissible forms of solitary confinement might violate the Eighth Amendment. Cases upholding instances of solitary confinement involve most often its imposition as a short-term punishment for disciplinary infractions.

Plaintiffs assert that it was arbitrary and unnecessary, once an open cell policy was adopted and was working, to revoke it. But prison administrators must have wide authority respecting measures necessary to safeguard inmates, to protect them one from the other, and to maintain security. “Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U. S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). Facing “complicated and combustible situations each day”, prison officials must be free to “make a wide range of decisions. Much must be left to their good faith discretion.” Palmigiano v. Baxter, 487 F.2d 1280, at 1283 (1st Cir. 1973). The mere fact that different measures might have worked or might still be workable does not allow a federal court to substitute its judgment for that of prison officials. The decision of prison authorities, made at a time of extreme unrest and supported by other considerations, not to permit fifteen inmates to roam around at once cannot be said to be so unreasonable as to be impermissible. An open cell policy was apparently a deviation from what had been the normal practice in Block 10. Plaintiffs have never denied that the state had sufficient reason in the first place to confine them there rather than with the general population. Nor was any contention advanced that reinstatement of the normal practice after several months invoked any procedural due process requirements.

At the hearing plaintiffs claimed to be “protective custody” inmates rather than “disciplinary cases”. Judge Craven, in his dissenting opinion in Breeden v. Jackson, 457 F.2d 578, 581-582 (4th Cir. 1972), argued that the state, which has a duty to protect inmates, may not condition that duty on an inmate’s acceptance of the same burden, i. e. solitary confinement, imposed as punishment in disciplinary cases. In other words, he proposes that something less onerous than solitary confinement must be provided for individuals who must be protected from the general population. But see Smith v. Swenson, 333 F.Supp. 1253 (W.D.Mo.1971).

However, there is no occasion for us to pass upon that issue here, and we do not do so. The record does not adequately reveal why plaintiffs were in Block 10. It was not shown that they were in Block 10 solely for reasons of their own safety. While the protective custody category might include, for example, one who had turned state’s witness it might also include a hardened offender who was highly disruptive or an individual lacking in sufficient self-control to mix safely with others. The associate superintendent of Walpole testified that plaintiffs were security risks, assaultive to others and the staff. He and the state police colonel in temporary charge of Walpole also testified that it would be dangerous — involving the “risk of murder or of death to one of the plaintiffs” — to permit them to leave their cells and mingle with others. Finally, it is not clear if the intermixing of categories of prisoners in Block 10 was a temporary expedient resulting from the crisis at the institution, or was to continue indefinitely.

On the evidence presented, the district court would have had no basis upon which to consider whether the plaintiffs’ present treatment was so unreasonably disproportionate as to be cruel and unusual.

Affirmed.

      . Plaintiffs purport to sue under JT.R.Civ.P. 23 for themselves and all persons similarly situated. Jurisdiction is alleged under 28 U.S.C. §§ 1331, 1343(3) and 1343(4), and the action is further alleged to be under 28 U.S.C. §§ 2201 and 2202.

      . While jdaintiffs rely primarily on the Eighth Amendment, they also refer to the First, Fifth, Sixth, Minth, Thirteenth and Fourteenth.

      . “[A] ’complaint should not he dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.” 2A Moore’s Federal Practice H 12.08 at pp. 2271, 2274.

      . During the relevant period Walpole, the maximum security Massachusetts state prison, was in turmoil. Early in 1973 its superintendent was replaced. A strike of guards followed. In June the state police were called in to take control of the institution temporarily; their commander became the acting superintendent. This case was heard by the district court in July, 1973, when the state police were still in control.

      . Sostre v. McGinnis, 442 F.2d 178 2d Cir. en banc 1971) ; Ford v. Board of Managers, 407 F.2d 937 (3d Cir. 1969) ; Novak v. Beto, 453 F.2d 661 (5th Cir. 1971). Cf. Rozecki v. Gaughan, 459 F.2d 6 (1st Cir. 1972).

      . That this may not be sheer romance is suggested by recent newspaper reports that in 1973 Walpole led the nation in the rate of inmate murders, a rate of 8.9 murders per 1,000 population being reported for the first eleven months. The Boston Globe, November 30, 1973.

      . What that may be is not so easily determined. The two senior Walpole officials who testified thought that protective custody prisoners might best be sent to another institution, rather than being intermingled in Block 10 with disciplinary cases. What different arrangements for their safekeeping, if any, would be in order elsewhere were not considered.

      . Two of the plaintiffs were said to have “been reported for assaulting officers.” One was said to be serving a sentence for having taken officers hostage and threatening to kill them.


author: OAKES, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Stuart COHEN, Appellant.
    No. 341, Docket 73-2121.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 26, 1973.
    Decided Dec. 17, 1973.

      See also D.C., 358 F.Supp. 112.

      Bertram Zweibon, New York City, for appellant. •
    Joseph Jaffe, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., Michael Q. Carey and S. Andrew Schaffer, Asst. U. S. Attys., on the brief), for ap-pellee.
    Before SMITH, FEINBERG and OAKES, Circuit Judges.
   OAKES, Circuit Judge:

Appellant was convicted below of conspiracy, of making false written statements in connection with the acquisition of firearms, and of falsifying federal forms; he seeks a new trial — not on the basis of insufficiency of the evidence— but on four grounds: that he was deprived of a fair trial by virtue of the Government’s introduction of “voluminous, irrelevant and highly prejudicial evidence” in connection with its proof on the conspiracy count; that a question asked by the Government of defendant on cross-examination was so prejudicial as to require a new trial even though it was objected to, not answered, and the jury was instructed to disregard it; that appellant should have been given a hearing on his allegation that the present indictment was in contravention of a plea bargain made in the Eastern District; and that appellant’s motion for a hearing on the issue of electronic surveillance was timely made. We believe that none of these points has merit and accordingly affirm the conviction.

Appellant, 17 years old at the time of the offenses with which he was charged, was an active, participating and sometime ranking member of the Jewish Defense League (JDL) in connection with some • of its activities, particularly its summer firearm instruction and training at Camp Jedel, which was located in Sullivan and Ulster Counties near Wood-bourne, New York. Appellant, with co-defendant David Sommer, was charged in a superseding indictment which, after election by the Government to waive seven of the original 13 counts at trial, consisted of six charges. Count One charged a conspiracy (18 U.S.C. § 371) allegedly begun in May, 1970, and ended on September 30, 1971, to defraud the United States and to violate the federal firearms statutes (18 U.S.C. §§ 922(a)(6), 924(a)), and the catch-all false forms statute (18 U.S.C. § 1001). Counts Three and Four charged the making of false statements on July 29, 1970, with respect to information required to be kept in the records of persons licensed to sell firearms, viz., that two .308 cal-ibre Remington rifles, Model 788, high-powered rifles with scopes attached, were respectively being transferred to a Manfred Begin of Ozone Park, New York, and a Tzvi Ben Ami of Brooklyn, when in fact the names and addresses of the transferees were fictitious. Counts 11, 12 and 13 charged, in connection with the same two firearms and a third Remington Model 788, the submission of false information in federal forms under 18 U.S.C. §§ 1001-1002, in that the names, addresses and New York State Department of Motor Vehicles identification numbers of the three supposed transferees were false.

The Government proofs included the testimony of the owners of Dau-Son’s Hardware and Sporting Goods Store in Woodbourne, New York, which sold the firearms, and of two undercover New York City police officers who had infiltrated the JDL organization and particularly its “Oz A” squad, certain stipulations, and corroboration by tape recordings made by the police officers. The Government evidence was to the effect that the weapons were bought for JDL and its Oz A squad with appellant and former codefendant David Sommer negotiating the purchase by means of fictitious purchasers with fictitious addresses and motor vehicle license numbers. Specifically as to appellant, the Government proved that he obtained the federal firearms transaction records form 4473, ordered the weapons, delivered the falsely filled out form and the Camp Jedel check which paid for the weapons to Dau-Son’s and picked up the weapons from it, all with knowledge that the forms were falsely completed. Appellant was sentenced as a youthful offender to concurrent terms of imprisonment of five months on each count on which he was convicted. As will be seen, it is not without significance that appellant’s attorney on appeal was ex-counsel at trial and was also counsel to Sheldon Davis and coeounsel with Barry I. Slotnick, Esq., who was counsel to appellant herein, in respect to the Southern District indictment — since dismissed —for the, firebombing resulting in the death of a secretary at the office of Sol Hurok.

As previously stated, appellant does not claim that his conviction was based upon insufficient evidence. Rather he argues that his trial was unfair because the Government’s case proved too much, that is to say, there was evidence introduced by the Government as to the JDL and assorted members in it, as to Camp Jedel, and other background and hearsay evidence not directly involving the defendant which was irrelevant to the offenses charged and unfairly adduced. Appellant rightly points out that no guilt by association or probative value can be inferred from the fact that he was a member of the JDL. United States v. Fantuzzi, 463 F.2d 683, 690 (2d Cir. 1972). See United States v. Kompinski, 373 F.2d 429, 434 (2d Cir. 1967).

The gist of appellant’s complaint was that a considerable amount of the Government’s proof had no bearing on the specific substantive charges made and at best only indirect bearing on the conspiracy charge because the conspiracy charge related to the filing of specific false federal firearms applications or the filling out of specific false federal forms. This evidence was in three basic forms. First, there was evidence that directly tied appellant to active participation in the JDL by linking him to meetings at JDL headquarters at various locations in the city of New York and the activities of the summer training camp, Camp Jedel, by proof of his active participation there with guns and firearms, together with a number of statements or admissions on his part dealing with firearms in an illegal context, e.g., that appellant would have liked to have sawed off to shorter than legal length the Belgian shotgun which he kept under his mattress, that a cocon-spirator (Joffe) had gone to Israel to acquire Uzi submachine guns, that he (appellant) had tried to buy gunpowder at Dau-Son’s hardware store, that he was ordering “a hell of a lot of stuff,” that he asked one of the undercover police officers to pick up some 8-inch pipes with caps for an incident scheduled to take place, and the like. Second, there was evidence that the JDL was involved in the acquisition of arms and ammunition of various kinds, this consisting both of weapons observed by the police officers at Camp Jedel and evidence as to various JDL members keeping and procuring arms, ammunition or other materiel, as well as declarations made by other JDL members both in and out of the presence of appellant relative to the procuring and use of firearms, e. g., the importation of machine guns from Israel in falsely marked crates, the illegal purchase of small arms, and the JDL firearms training program. Third, the Government produced evidence that the JDL was involved in a program of training for violent action — this included evidence from the mouth of appellant himself about the slogan “For Every Jew, a .22,” about the JDL’s possession of riot shotguns (some of which were used for instructional purposes at Camp Jedel), the teaching of the manufacture and use of Molotov cocktails, a discussion as to the use of silencers in connection with assassinations, another concerning the alteration of the Uzi submachine gun so as not to be able to trace the weapon through shell casings or bullets found at the scene, still another as to the acquisition of handguns from a “Mafia contact” (as to which the court on its own motion instructed the jury to disregard the term), and the like.

While much of this evidence, particularly in the third category, did range rather far afield from the specific crimes for which appellant was being tried, all of it related to the purpose, scope and existence of a conspiracy on the part of the JDL and its leaders to acquire weapons and ammunition through illegal means, of which the very conspiracy charged specifically in Count One was a part. Much of the evidence was invited by defense counsel’s laying down the gauntlet in opening: “where did they conspire, how did they conspire, what was said, who was the initiator, who was the leader, what were the facts were there discussions, were there conversations . . . .” Transcript, vol. 3, at 20-21. Much of the evidence was admitted indeed without objection, but we do not uphold the conviction on this ground. Nor need we go so far as to say that the evidence was admissible as “background” evidence in a complicated conspiracy as in, e. g., United States v. Colasurdo, 453 F.2d 585, 591 (2d Cir. 1971). Specifically we hold that evidence of observations made by the infiltrating police officers and of acts relating to the acquisition of weapons by other members of the conspiracy charged in the indictment were admissible to prove the existence and aim of the conspiracy charged. See United States v. Costello, 352 F.2d 848, 854 (2d Cir. 1965), rev’d on other grounds sub nom. Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). The statements and acts of the appellant admitted were admissible to show his state of mind, his intent, in respect to the conspiracy. Cf. United States v. Del Purgatorio, 411 F.2d 84, 86-87 (2d Cir. 1969).

Extrajudicial declarations of coconspirators were admissible against the appellant once the trial judge had concluded by a fair preponderance from proof other than such declarations that the appellant was shown to be a member of the conspiracy. United States v. Manfredi, 488 F.2d 588 at 596 (2d Cir. 1973); United States v. Puco, 476 F.2d 1099, 1107 (2d Cir. 1973); United States v. Projansky, 465 F.2d 123, 137-138 (2d Cir.), cert, denied, 409 U.S. 1006, 93 S.Ct. 432, 34 L.Ed.2d 299 (1972); United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969), cert, denied, 397 U.S. 1028, 90 S.Ct. 1276, 25 L. Ed.2d 539 (1970). Some of these declarations were admitted subject to connection as is usually the case and, absent any motion to strike or requested instruction, appellant cannot be heard to complain of this now. In his opening statement, moreover, counsel for appellant raised the issue of entrapment by telling the jury that Rosenthal, the chief infiltrating police officer, “egged on the defendant . . . entrapped the defendant . . . encouraged the de-

fendant to commit the acts which he certainly knew were wrong, criminal, morally reprehensible.” Transcript, vol. 3, at 25. Thus the Government was entitled to anticipate the defense and to prove appellant’s predisposition to commit the acts charged and his propensity to engage in the unlawful acquisition of firearms by making false statements. Cf. United States v. Russell, 411 U.S. 423, 433-436, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); United States v. Rosner, 485 F.2d 1213 at 1221-1222 (2d Cir. 1973). Similarly, since appellant had in his opening statement put into issue his motive and intent to commit the crimes charged, evidence of prior similar acts and involvement on appellant’s part in allegedly illegal JDL activities was admissible on this issue. United States v. Brettholz, 485 F.2d 483, at 487 (2d Cir. 1973).

Appellant contends that the court failed properly to instruct the jury with regard to evidence received subject to connection and the purpose for which the evidence was introduced but appellant failed to make any requests, even though specifically asked by the court, for charges along the lines he now claims should have been given, even though reminded to do so at the time the court ruled on requests to charge. Appellant also failed to except to the charge or supplemental charge. Under Fed.R.Crim.P. 30 and United States v. Tourine, 428 F.2d 865, 868-869 (2d Cir. 1970), cert, denied, 400 U.S. 1020, 91 S. Ct. 581, 27 L.Ed.2d 631 (1971), appellant’s complaint on this score comes too late.

The second main point urged by appellant is that the Government committed reversible error in asking appellant on cross-examination “Is Sol Hurok an anti-Semite?” Appellant’s claim is, of course, that the sole purpose of this question was to advise the jury that there was a connection between Cohen and the January 26, 1972, firebombing of Hurok’s office which resulted in the death of a secretary. Appellant had previously stated that the JDL’s main purpose was to combat anti-Semitism and, on cross-examination before the question relating to Sol Hurok, he was asked if it were correct that the aim of the JDL was to protect people from anti-Semitism. The court sustained objection to the Sol Hurok question and immediately informed the jury that “It makes no difference whether [Sol Hurok] is [an anti-Semite].” Transcript at 1417. Shortly thereafter in the jury’s absence the Government made what amounted to an offer of proof in pointing out that its witness, Officer Eisner, was available on rebuttal to testify as to appellant’s previous anti-Hu-rok agitation (transcript at 1426-27); this offer of proof was totally unrelated to the pending bombing charge, and referred to various sit-in demonstrations and disturbances participated in by appellant and directed against Sol Hurok. The court refused to permit the Government to question Eisner on that subject. The only other allusions to Hurok during the trial were made by defense counsel, either in making an objection or in summation.

In the overall context of this ten-day trial involving approximately 1,700 pages of transcript, we do not think that the asking of this one question was in and of itself prejudicial error, particularly in the light of the court’s firm action sustaining the objection and pointing out the immateriality of it, at least where the question itself contained no reference to the Hurok bombing and there was a good faith offer of proof relative to appellant’s engaging in other anti-Hurok activities and demonstrations. In so holding we need not accept the Government’s argument that appellant invited reference to this by his statements on direct examination that he had been indicted on charges in the Southern District to which he had pleaded not guilty or that he had been interviewed by the Federal Bureau of Investigation. Nor do we accept the argument that by virtue of counsel’s own references either in connection with objections or in summation that any possible prejudice was cured, since these references may have been directed to avoiding any prejudice to the appellant from the Government’s question. Parenthetically, the comments of defense counsel in making the “Sheldon Davis” objection seem to us to be part of an overall strategy which we choose not to examine in depth. See note 2 supra'.

Appellant’s argument that he had been promised by the United States Attorney’s office in the Eastern District of New York that he would not be prosecuted on the facts alleged under the present indictment borders on the frivolous. It was not until the morning of trial that appellant, for the first time and without supporting papers, moved to dismiss the instant indictment on the ground that the prosecution constituted double jeopardy. He claimed that this indictment was based on the same facts as certain indictments filed in the Eastern District of New York. The motion was denied with leave to renew, and it was renewed subsequent to trial. In a post-trial motion appellant’s attorney stated in his affidavit that, had the defendants named in one of the two . Eastern District indictments gone to trial (appellant was not included as one), three of the weapons at issue in the instant indictment (which were not mentioned in the Eastern District indictment) would have been introduced into evidence. Uncontradieted affidavits of the United States Attorney for the Eastern District and his two chief assistants indicated, and the trial court found, that there was no factual basis to show that any promise had been made to appellant or that he had relied on one, that the facts underlying the indictments in the Eastern District were wholly separate and apart from the facts concerned in the present indictment, that there was no promise of immunity made to appellant, and that at the time of the pleas in Brooklyn the crimes alleged in the instant indictment were not under investigation. The district court properly relied on the transcript, affidavit and exhibits and was not required to hold an evidentiary hearing. Cf. United States v. Carlino, 400 F.2d 56, 58 (2d Cir. 1968), cert, denied, 394 U.S. 1013, 89 S. Ct. 1630, 23 L.Ed.2d 39 (1969); Accardi v. United States, 379 F.2d 312, 313 (2d Cir. 1967). While on appeal for the first time appellant claims that there was an agreement by the United States Attorney for the Eastern District to the effect that the Government “would not introduce any evidence to be introduced on the Eastern District indictment in any subsequent criminal prosecution of appellant,” this argument finds no support whatsoever in the record by way of an affidavit from appellant or otherwise.

Appellant’s fourth and final point is that he was entitled to a hearing on the issue of electronic surveillance. He claims in his brief that the Government’s evidence was obtained by an illegal wiretap with the issue of taint being impossible to explore by virtue of the fact that the tapes themselves were destroyed, and he refers us specifically to United States v. Huss, 482 F.2d 38, 52 (2d Cir. 1973), which he claims involved tapes from the very taps in the instant proceeding. He argues that it was the understanding of his counsel that the trial of the instant proceeding would follow the trial of the Hurok bombing case; United States v. Cohen, Davis and Segal, supra, and therefore he refrained from making any wiretap motion pending a determination in the prior litigation as to the legality of the taps and the effect of the destruction of the tapes. However, 18 U.S.C. § 2518(10) (a) clearly states that a motion such as appellant’s “shall be made before the trial. . . . ” and here it was not made until after the trial and four days before sentence. It would appear clear that appellant waived his rights. United States v. Grant, 462 F.2d 28, 32 (2d Cir.), cert, denied, 409 U.S. 914, 93 S.Ct. 234, 34 L.Ed.2d 176 (1972). His counsel was well aware of the issue raised in Huss, supra, especially in light of the fact that he was representing codefend-ant Sheldon Davis as well as serving as coeounsel with Barry Slotnick for appellant here, Stuart Cohen, who was as said a defendant in that case. Indeed, appellant received copies of the reports of electronic surveillance containing his voice, having joined in a motion to have them discovered and having consented to the entry of a protective order on December 5, 1972. Thus he had ample opportunity to make his motion prior to the commencement of the instant trial on March 12, 1973. As to the precedence of trial in the Hurok case and this one, while it was apparent that Judge Bonsai had acceded to Judge Bauman’s request that the Hurok case go forward first, motions made before Judge Bau-man necessitating extended hearings and other matters resulted in adjournment of the case before Judge Bauman until May 29, 1973. Counsel in the present case were notified more than two weeks in advance of trial that trial would commence on March 12, 1973, and immediately prior to trial appellant stated for the record that he had no claim of being rushed to trial and that none of his rights had been denied due to the change in scheduling. There is no showing of good cause for his failure to move before trial pursuant to 18 U.S.C. § 2518(10)(a).

We therefore affirm the judgment.

Judgment affirmed.

      . Appellant’s codefendant, Sommer, entered a plea of guilty to Counts 11, 12 and 13 on the morning of the trial.

      . Examples include appellant’s claim in his brief at Page 61 that the Government openly displayed two dozen rifles; in fact these ri-fies were a defense exhibit, DX-H, produced in court over Government objection at defense request. Moreover, both at opening and during the trial appellant indicated that he would bring out his involvement with guns, bombs, rifles, bombings, Molotov cocktails, hijackings and such. His involvement with bombs was first brought out, for exam-pie, on the cross-examination of the Government’s witness, Dau-Son’s Hardware Store owner David Brown. Information was elicited on cross-examination from Police Officer Rosenthal about killings, assassinations, bombings, racial havoc, etc. Indeed, one wonders precisely what the defense strategy was in the case. A clue may lie perhaps in counsel’s statement in opening, “And Mr. Cohen does believe, as I believe and as many other Jews believe, that another holocaust may come and that we may have . . . reason to defend ourselves.” Transcript, vol. 2, at 18.

      . We will not deny that Mr. Stuart Cohen knew that guns were purchased. What we deny is that he at any time knowingly, willfully, and unlawfully did anything that he knew and felt and thought and understood to be wrong and criminal at the time that he was doing it.
      Transcript, vol. 2, at 17-18.

      . Appellant was one of three codefendants in United States v. Cohen, Davis and Segal, S-72 Cr. 778, the trial of which was begun on May 30, 1973; the case was apparently dismissed after three of the Government’s witnesses refused to testify.

      . Your Honor, may I object to this? What is the purpose of pointing out Sheldon Davis, who is under indictment for bombing in Hurok? What is the point of this, and why is it permitted, your honor?
      Transcript at 1625.

      . You heard Mr. Jaffe get up in front of you, in front of the jury, and ask Stuart Colien if Sol Hurok was an anti-semite
      Let me remind you, if I may, that Stu Cohen is not on trial here for making a bomb, for bombing Hurok ....
      Transcript at 1746.


author: SPRECHER, Circuit Judge.

text:
    Albert BAKER, Plaintiff-Appellant, v. CHICAGO, FIRE & BURGLARY DETECTION, INC., Defendant-Appellee.
    No. 72-1983.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 16, 1973.
    Decided Nov. 30, 1973.
    Wayne B. Giampietro, Chicago, 111., for plaintiff-appellant.
    George W. Johnson, Glen Ellyn, 111., for defendant-appellee.
    Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge and SPRECHER, Circuit Judge.
   SPRECHER, Circuit Judge.

This appeal raises the question of whether the instant action commenced under Title VII of the Civil Rights Act of 1964 was properly disposed of on a motion for summary judgment.

I

Plaintiff filed a complaint with the Equal Employment Opportunity Commission on June 3, 1971 alleging that on or about June 1, 1971 he had been discharged from his employment with Chicago Fire & Burglary Detection, Inc. (the “company”) by reason of the fact that he was a member of the Jewish religion.

On September 1, 1971, the company issued a check to plaintiff in connection with a proceeding before the State of Illinois Department of Labor, Wage Claim Division (File No. 71-1065) for wages allegedly earned by plaintiff prior to his discharge. The Wage Claim Division forwarded the check to plaintiff stating that the sum was “to cover payment of your Wage Claim filed in this office against your former employer” (Record, 74). The check was made out in the amount of $28.68 ($36 less deductions); the reverse side contained a typewritten legend reciting the following: “Full Payment and Settlement of Any and All Claims Against Chicago Fire and Burglary Detection, Inc.” Plaintiff had not communicated with the company concerning this release and had no prior knowledge that it would appear on the check. Plaintiff conversed with an employee of the Wage Claim Division concerning the significance of the legend and was advised that it would have no effect on any other cause of action he might have against his company. Consequently, plaintiff subsequently negotiated the check.

The EEOC issued to plaintiff a Notice of Right to Sue on January 3, 1972 and suit was commenced on January 10, 1972. Counsel for plaintiff was appointed by the district court on February 10, 1972.

The complaint was based on 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. The company’s answer denied that the plaintiff had been discharged because of his religion and raised the affirmative defense of not being an employer within the meaning of 42 U.S.C. § 2000e(b). The company then filed a motion for summary judgment with supporting affidavits on the basis that the 42 U.S.C. § 2000e claim failed for lack of jurisdiction and the 42 U.S.C. § 1981 claim had been satisfied and released. Plaintiff’s reply to the motion for summary judgment denied that his negotiation of the check was intended to have the effect of releasing his civil rights claim and further raised the procedural irregularity of the company pleading the release for the first time in a motion for summary judgment.

In granting summary judgment in favor of the company, the district court found that the Section 2000e claim failed because the company did not employ 25 or more persons. Plaintiff does not appeal this determination. As to the Section 1981 claim, the release was given force and effect on the basis of the following reasoning:

“This language seems clear enough, and allows ,no exceptions. Plaintiff does not contend that he did not know of his § 1981 claim when he signed. In fact his brief states that he had proceedings pending before the F.E. P.C. at this time. Plaintiff merely contends that the Illinois Department of Labor told him that the release would not affect claims other than the wage claim which he was then settling.
“Plaintiff has no right to rely on the advice of a third party to the prejudice of defendant. If the defendant had misled him or otherwise practiced fraud or duress on him, he might have a case. But absent such circumstances, he cannot be allowed to set aside a general release every time he or his lawyer files a new lawsuit against the released party. Lawrence v. Muter, 171 F.2d 380 (7th Cir. 1948).”

Plaintiff argued that he had a right to rely on the advice of the Wage Claim Division and it was reasonable for him to do so, that the cheek represented only wages due and was not intended to compensate him for his civil rights claims, and that there was no intention on his part that the release be effective generally. Consequently, under Illinois law the release would not bar the 'instant action.

II

Federal Rule of Civil Procedure 8(c) provides in pertinent part that “[i]n pleading to a preceding pleading, a party shall set forth affirmatively . . release . . . and any other matter constituting an avoidance or affirmative defense.”

Here, the company, subsequent to answer, supported a motion for summary judgment by raising the affirmative defense of release by affidavits, which defense was not raised in its answer, In Roe v. Sears, Roebuck & Co., 132 F.2d 829 (7th Cir. 1943), where defendant answered, then subsequently set up the defense of statute of limitations for the first time by way of affidavits in support of a motion for summary judgment, the court set forth the principle applicable in this Court as follows :

“When «defendant moved for summary judgment it had filed an answer, the legal effect of which was a waiver of its defense of the statute of limitations. It could not, therefore, unless relieved from, its default, revive the defense it had waived. We need not consider when a defendant may be excused from its failure to plead the statute of limitations, and be permitted to amend its answer, because the instant case presents no such question. The defendant herein sought no such relief.” 132 F.2d at 832 (emphasis added).

However, since the plaintiff does not appear to have been unfairly disadvantaged by the company’s failure to plead the defense in his answer, we do not reverse the lower court on this ground alone.

Ill

In determining the operational effect of a release, the Illinois courts have considered a combination of factors: the intentions of the parties, the adequacy of the consideration, the care and diligence exercised by mistaken parties, and the possibility of injustice to the party seeking to enforce the release. Here, the company has not contended that the payment provided any compensation for the alleged civil rights injury, or that the plaintiff intended to sign a release covering the instant action, or that its belief that the company had become a party to a general release has been detrimental to its interest. At best, the company alleged that the plaintiff unreasonably relied on the advice of a third party which advice caused him to endorse the check.

The appellee could have availed himself of the amendment procedures liberally available under Fed.R.Civ.P. 15(a).
In a proper case, where a motion for summary judgment is supported by matters outside the pleadings, the court could deem the answer amended to conform to the proof offered. Seaboard Terminals Corp. v. Standard Oil Co., 104 F.2d 659, 660 (2nd Cir. 1939) (dictum).

It is not disputed that the plaintiff received no consideration and the company suffered no detriment. Under such circumstances, the same principles applied to discharge of an existing obligation are appropriate where assertion of a claim is involved. The company did not cite and we can not find an Illinois case upholding a release unsupported by consideration.

“A valid release must be based upon a consideration before it can be efficacious in a court of law. Where the promisor receives no benefit and the promisee suffers no detriment the whole transaction is in its nature a nudum pactum.”

Toffenetti v. Mellor, 323 Ill. 143, 148, 153 N.E. 744, 746 (1926); accord, Sullivan v. Elgin, J. & E. R. Co., 331 Ill.App. 613, 73 N.E.2d 632 (1947) (release set aside where the only consideration was for time lost because of the injury).

The absence of consideration is also significant as it relates to the intentions of the parties. Plaintiff argued that he did not intend to agree to a general release; the company did not dispute this argument. We do not believe that under the applicable standard the appellant acted unreasonably. The Department of Labor is not only empowered to investigate and attempt to adjust wage claims, but also to prosecute such claims if necessary. Ill.Rev.Stat. ch. 48, § 39Z. In order to cash checks in amounts such as $28.68, reasonable men, especially those whose resources are limited, do not normally seek the advice of an attorney. Furthermore, the company could reasonably have surmised that the plaintiff might well be unaware of the effect of the language where it made no attempt to communicate the result it was attempting to achieve.

The company contended that at most the mistake was unilateral (but see note 8, supra) and that a release will not be voided unless the mistake is mutual.

“The plaintiff seeks to avoid the consequences of the release on the ground that it was not supported by consideration, invoking the rule that a discharge of an existing obligation or right of action by release requires consideration. Toffenetti v. Mellor . . .We disagree with the contention that this release was void for want of consideration. [since] the increase in compensation ties in with and supplies valid consideration for the release.” 171 F.2d 384-385.
“It is true the Illiniois cases contain dicta that in some cases a release may be set aside because of a unilateral mistake, but no explanation is given of the type of case in which such a principle would be applied.”

Thomas v. Hollowell, 20 Ill.App.2d 288, 289, 155 N.E.2d 827, 828 (1959). From a close reading of the Illinois cases, we have concluded that such a principle would be applied in the instant case due to the absence of consideration, intention, and like factors present in cases upholding the release. The principle is particularly appropriate where the evidence does not suggest that any injustice will be done to the party seeking enforcement. In any event, we are not convinced that the Illinois, courts have not in fact applied the principle. Compare Ruggles v. Selby, 25 Ill.App.2d 1, 165 N.E.2d 733 (1960) with Thomas v. Hollowed, 20 Ill.App.2d 288, 155 N.E.2d 827 (1959).

It is true that the law favors compromise and settlement. The courts do not create compromises they only enforce them when such was the intention of the parties at the time the contract was entered into.

On the undisputed facts, we hold as a matter of law that the release does not operate as a bar to the § 1981 claim. Accordingly, this cause is remanded with directions to proceed with the civil rights claim with the affirmative defense of release stricken.

Reversed and remanded.

      . “Finally, whether this release is valid or not is an affirmative defense, which must be pleaded and proved by defendant, and is a matter of fact to be determined by the trier of fact upon a trial of the cause.” Record, 94. .
      “The release allegedly signed and accepted by plaintiff is clearly not grounds upon which to grant the Motion for Summary Judgment. At most it is an affirmative defense which defendant might raise at the time of trial.” Record, 95-96.

      . See generally 2A J. Moore, Federal Practice K 8.27 [2] (1972).

      . See also Wagner v. Fawcett Publications, 307 F.2d 409, 412 (7th Cir. 1962) ; cert. denied, 372 U.S. 909, 83 S.Ct. 723, 9 L.Ed.2d 718 (1963).

      . Both parties have cited and relied upon Illinois law, where the transactions at issue, occurred.

      . The district court cites Lawrence v. Muter Co., 171 F.2d 380 (7th Cir. 1949) in support of the validity of the release. In that case the Toffenetti holding was discussed and found inapplicable.

      . “It is not enough to prevent relief that the party might, had he done all within his power, have ascertained the truth but only reasonable diligence is required.” Frazer v. Glass, 311 Ill.App. 336, 342, 35 N.E.2d 953, 956 (1941).

      . Counsel was appointed for appellant in the instant action.

      . This, when considered in conjunction with the absence of consideration, raises a strong inference that the company had prior notice that the plaintiff would not endorse the check absent a mistake, thereby precluding an intention on its part as well that the release was to be general.

      . See Fraser v. Glass, 311 Ill.App. at 343-344, 35 N.E.2d 953 at 956.

      . “Statements are exceedingly common, both in texts and in court opinions, that relief will not be given on the ground of mistake unless the mistake is ‘mutual.’ Such a broad generalization is misleading and untrue. Seldom is it accompanied by either definition or analysis. A study of thousands of cases is not necessary to convince us that to err is human, botli in the sense of having mistaken ideas and in the sense of performing acts that are evil or unwise. But such a study will show that human mistakes are of great variety in kind with a great variety of causes, that they have a great variety of results, and that the juristic effects vary as the combinations of factors vary.
      “Cases do not always submit readily to be classified with either ‘mutual mistake’ or ‘unilateral mistake.’ And even when they do submit, the solution does not mechanically follow in accordance with a separate set of rules for each class. Very often relief has been and will be, granted where the mistake is unilateral. And relief is not necessarily granted, even though the mistake is mutual. It depends very materially upon the form of relief sought. .
      * * * * *
      “ . . . Statements are very numerous to the effect that the mistake of only one of the parties to a contract is not a ground for relief either at law or in equity. Such a statement can be accepted only in case the party seeking relief proves no more than that his action was induced by his erroneous thought. The statement will seldom be found in cases in which relief is granted; in the cases refusing relief and making the statement as a reason for so doing, the court has always considered and weighed the additional factors that accompanied the mistake.” Corbin, Contracts § 608, at 556-557 (One Vol.Ed.1952).