text:
    NATIONAL ADVERTISING COMPANY v. The UNITED STATES.
    No. 47-71.
    United States Court of Claims.
    Dec. 18, 1974.
    Joseph A. Maun, St. Paul, Minn., attorney of record, for plaintiff. James W. Brehl, St. Paul, Minn., of counsel.
    Kenneth R. Boiarsky, Washington, D. C., with whom was Asst. Atty. Gen. Scott P. Crampton, for defendant. Gilbert E. Andrews, Washington, D. C., of counsel.
    Before COWEN, Chief Judge, and NICHOLS and KASHIWA, Judges.
   OPINION

KASHIWA, Judge:

This is a suit for the recovery of federal corporate income taxes and interest, plus statutory interest, for the calendar years 1962 through 1965 involving the investment credit provisions of the Internal Revenue Code of 1954. We hold for the plaintiff upon the material facts stipulated.

Plaintiff is engaged nationwide in the business of erecting, maintaining, and renting outdoor advertising displays, commonly known as billboards. The billboards display advertising of the products and services of plaintiff’s customers. The billboards owned by plaintiff were constructed on property leased to plaintiff by the property owners. The terms of the leases generally provided for a period of ten years which may be terminated by the lessor upon 90 days’ notice to the plaintiff if the occupied property was required for permanent construction by the lessor, or may be terminated by plaintiff upon 15 days’ notice to the lessor if the property, under specified conditions, became unsuited for plaintiff’s displays or if such use was prevented by law. The leases provided that the displays remained plaintiff’s property and that plaintiff had a right to remove them.

The removal of plaintiff’s displays was accomplished in the following manner after the display framework was disassembled. The wood pole uprights set in sacrete were predominantly pulled from the ground using a chain and a 16-ton jack except in some instances where they may have been manually removed; otherwise, they were removed by cutting off each pole at ground level or one foot below ground level. The wood pole uprights set in poured concrete were removed by cutting them off at ground level or by breaking off the concrete to one foot below ground level and cutting off the pole at that point. The steel beam or steel pole uprights, all set in concrete, were removed similarly. The shopping center displays were removed by disassembling the framework and horizontal members and then removing the thru-bolts, and unclamping the collar from the light standard.

In the stipulation of facts in the Alabama Displays, Inc. cases, the signs were segregated into three categories based on the supporting structure: wood poles, steel I beams, and “A” frames. In this case the approach differed. The stipulation was not by the type of sign but was based on inventory control numbers. Fortunately, in this case, actual pictures representative of the signs in dispute were submitted.

The displays were segregated into four accounts numbered 272, 274, 276, and 278. In accounts # 272 and # 274 the' displays were supported by wood poles. In account # 278 the displays were supported by steel and wood supports. Two rooftop signs, separately dealt with in the next paragraph, were included therein. For the wood and steel beam types, this court’s holding and reasoning in the Alabama cases decided on even date herewith apply. We hold that these displays of the plaintiff are tangible personal property under § 48(a)(1)(A) of the Internal Revenue Code of 1954 and plaintiff is entitled to investment credit. This disposes of a major portion of the case.

There are several types of signs in this case which were not considered in the Alabama case. Though very minor in relation to total cost, we deal with them separately. First account # 276 contained displays of metal frames and hardware to be placed on lighting standards (poles) in shopping center parking lots. The lighting standards were not owned by the plaintiff but by the shopping center owner. The displays were mounted by use of a two-piece collar attached by two bolts. A picture of the display was included in the exhibits. On the face of it, these displays appear to be tangible personal property, the attachment not being significant enough to warrant further discussion. Secondly, account # 278 contained two rooftop signs. They are stipulated to be removable. These are tangible personal property under § 48(a)(1)(A) according to Treas.Reg. § 1.48 — 1(c) which states that “Thus, such property as * * * neon and other signs, which is contained in or attached to a building constitutes tangible personal property for purposes of the credit allowed by section 38.” Therefore, plaintiff is entitled to investment credit for both of these types of signs.

CONCLUSION OF LAW

Upon the foregoing opinion, the facts as stipulated by the parties, the briefs and oral argument of counsel, the court concludes as a matter of law that the plaintiff is entitled to recover on all of its claims and judgment is entered to that effect. The amount of recovery will be determined in subsequent proceedings pursuant to Rule 131(c).

      . Except in 10 to 15 instances hereinafter discussed.

      . Alabama Displays, Inc. v. United States, Ct.Cl., 507 F.2d 844. Kentucky Displays, Inc. v. United States, Ct.Cl., 507 F.2d 844. Tuscaloosa Advertising, Inc. v. United States, Ct.Cl., 507 F.2d 844. These three suits were consolidated. Opinion this day. (Hereinafter referred to as Alabama cases.)

      . The stipulated facts show that 10 to 15 locations where the displays were installed were owned by the plaintiff. This is a de minimis amount in relation to the thousands of displays in issue but we feel that we should discuss these displays to show that we were not unmindful of this fact difference. The defendant in its brief did not raise any question as to whether these signs should be separately dealt with. During argument defendant’s counsel was specifically questioned as to whether the stipulated method of classifying signs by inventory number confused some of the issues. Both plaintiff and defendant seemed content with the stipulation. In Tomlinson v. Lefkowitz, 334 F.2d 262, 266 (5th Cir. 1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965), the court stated with relation to omitted stipulated issues of fact and law as follows:
      “ * * * The parties agreed by stipulation at a pretrial conference what issues of fact and law were to be decided by the trial court. This point was not included in those issues remaining open for consideration. Thus the appellant should not be permitted to raise the issue here for the first time. * * * »>
      It was clear from the stipulation that most of the signs in this case were of the wooden pole variety. Some were little more than enlarged-size placards and where there were signs of special significance such as those attached to shopping center lighting standards, they were described in detail and called to the attention of this court. It is said that “An inference may be drawn not merely from what a stipulation says but from what it fails to say.” Vanity Fair Paper Mills, Inc. v. Federal Trade Commission, 311 F.2d 480, 485 (2d Cir. 1962). Therefore, construing the entire stipulation under the circumstances above mentioned, we take the slight reference to the 10 to 15 signs on locations owned by plaintiff to mean that the fact that these few signs were situated on property owned by plaintiff was not significant. We include these few signs with those in above-mentioned accounts 272, 274, and 278. They are tangible personal property. We do not, in this opinion, treat this category of signs as creating any separate issue of permanence. Billboards which are on taxpayer’s property may or may not be considered permanent under other circumstances and facts, especially where the parties raise the issue specifically. We deem it unnecessary to make such a decision under the stipulation and circumstances before this court in this case.


source: Caselaw Access Project

author: BENNETT, Judge:

license: Public Domain

text:
    The POTTAWATOMIE NATION OF INDIANS et al., Appellants, v. The UNITED STATES and Hannahville Indian Community et al., Appellees.
    Appeal No. 6-73.
    United States Court of Claims.
    Dec. 18, 1974.

      Robert S. Johnson, attorney of record, Topeka, Kan., for Pottawatomie Nation of Indians, and others, appellants.
    Louis L. Rochmes, attorney of record, for Citizen Band of Potawatomi Indians of Oklahoma, and others. Jack Joseph, Chicago, Ill., of counsel, for appellants.
    Richard L. Beal, Washington, D. C., with whom was Asst. Atty. Gen. Wallace' H. Johnson, for the United States, appel-lee.
    Robert C. Bell, Jr., attorney of record, New Canaan, Conn., for Hannahville Indian Community, and others, appellees.
    Before COWEN, Chief Judge, and NICHOLS and BENNETT, Judges.
   ON APPEAL FROM THE INDIAN CLAIMS COMMISSION

BENNETT, Judge:

The issue in this case, heard on appeal from orders of the Indian Claims Commission, is whether all Indians of the Pottawatomie tribe, or only certain groups thereof, should share in any award by the Commission of additional compensation for lands ceded by Potta-watomies under the treaty of October 20, 1832, 7 Stat. 378. Appellants would restrict the award to certain “bands”; ap-pellees Hannahville Indian Community, et ah, would have all Pottawatomies share. Appellee United States has no financial interest in the outcome and consequently has taken no position. A majority of the Commission has held that all Pottawatomies should share.

There is no dispute that any eventual award by the Commission is to be made to that body of Indians which actually owned and ceded land to the United States under the treaty of October 20, 1832. Of necessity therefore, appellants, who claim that only a portion of the Pottawatomie tribe should share in any award, contend that only a portion of the tribe owned and ceded the land. Appellees Hannahville Indian Community, et al., argued successfully before the Commission that the whole Pottawatomie tribe or nation owned and ceded the land.

In arriving at the decisions from which this appeal is taken, the Commission endeavored to follow the instructions given it by this court in a related case, Hannahville Indian Community v. United States, 180 Ct.Cl. 477 (1967). The Hannahville case, though concerned with treaties other than the one we consider herein, presented the same question of fact — namely, whether land purchased by the United States was owned and ceded by all or only a portion of, the Pottawatomie nation. In that case, as here, the Prairie, and Citizen bands of Pottawatomie Indians contended that the respective treaties were made with autonomous “bands” of Pottawatomies, while the Hannahville Indian Community argued that the Pottawatomie tribe was a single political entity which owned all lands in common. Because the Commission had failed to do so in the first instance, we returned the case to it with instructions to “make a de novo determination of the political structure of the Potawatomi Indians at the times when the United States negotiated the various treaties with them giving rise to the claims asserted * * 180 Ct.Cl. at 486.

In response to these instructions, the Commission consolidated the remanded dockets with other dockets (including those presently under consideration), and in one large proceeding sought to “resolve the question of the political structure of the Potawatomi Indians during the period 1795-1833 * * *.” 27 Ind. Cl. Comm, at 188. The Commission defined the question for decision as “whether the Potawatomis were negotiating the treaties during that period as a single land-owning entity * * * or as several separate autonomous groups * * Id. The majority of the Commission concluded that, in all treaties during the period 1795 — 1833 in which Pottawatomies ceded lands to the United States, including the treaty of October 20, 1832, the tribe acted as a single entity, ceding lands owned by all the Potta-watomies in common.

The question decided by the Commission, and on appeal here, is one of fact. By statute we are limited to a determination of whether such a factual finding is supported by substantial evidence on the record as a whole. If so, it is conclusive. That we might have reached a contrary result on the evidence is then of no consequence. Seminole Nation of Oklahoma v. United States, 498 F.2d 1368, 204 Ct.Cl. 655 (1974); Hannahville Indian Community v. United States, supra, 180 Ct.Cl. at 486 n. 10; Sac & Fox Tribe v. United States, 315 F.2d 896, 906, 161 Ct.Cl. 189, 207, cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165 (1963). The evidence before the Commission in this case included hundreds of historical documents — treaties, journals of treaty negotiations, reports of Indian agents and commissioners, correspondence of the Department of War, and congressional appropriations, among others — and testimony by experts in Indian affairs. The evidence occasionally points in more than one direction; it cannot always be harmonized in one theoretical framework. After careful consideration of this evidence, however, we have concluded, and we hold, that the ultimate factual determination of the Commission — that the Pottawatomie tribe was a single land-owning entity during the period 1795 — 1833— is supported by substantial evidence and is, therefore, conclusive on the court. It follows that the land ceded by treaty of October 20, 1832, was not, as appellants urge, owned and ceded by an autonomous band or bands of Pottawatomies.

We now review the evidence which was relied upon by the Commission, and which we find to be substantial. Though, as the Commission states, “the answer lies primarily in the treaties themselves,” we find it helpful to consider first the historical background and anthropological evidence (expert testimony), because this information leads to a better understanding of the individual treaties.

During the first half of the eighteenth century, the French fur trade prospered in the region of the Great Lakes, and a series of trading posts marked a continuous route south from the Great Lakes through the valleys of the Wabash and upper Mississippi Rivers. There were virtually continuous waterways from the western shores of Lake Michigan to Detroit either through the Straits of Mackinac (northern route) or along the St. Joseph and other rivers (southern route). It was along these main avenues of communication that the majority of Pottawatomie settlements were located. As a result of their strategic locations, the Pottawatomies were able to move with relative ease among their communities. This travel was a unifying force; correspondence and treaties in the first half of the nineteenth century show that Pot-tawatomies in the Detroit area kept in contact with members of their tribe in settlements in western Michigan, Indiana, Illinois, and Wisconsin. Two deeds of land by the Indians prior to the 1795— 1833 period, with which we are directly concerned, tend to show Pottawatomie unity in the late 1700’s. Under a deed of July 6, 1776, the chiefs of the Potta-watomies, by and with the consent of the whole nation, granted, as a gift, Grosse Isle, situated at the mouth of the Detroit River where it empties into Lake Erie. By deed of May 15, 1786, land on the Raisin River was given by the chiefs of the Pottawatomie nation of Detroit “with the advice and consent of and in the name of the entire nation.”

At the Commission’s de novo proceeding, three expert witnesses testified, all for appellees Hannahville Indian Community, et al. The witnesses were anthropologists and/or ethnohistorians, and all held teaching positions in midwestern universities. These witnesses were unanimous in their belief that during the period 1795 — 1833, lands ceded by the Pottawatomies in the various treaties were owned and ceded by the whole nation as a single political entity. Skillful cross-examination of these witnesses revealed that their preparation for the hearing was somewhat abbreviated and that they had perhaps a greater knowledge of Indian affairs in general than of the particular Pottawatomie political structure during the years 1795 — 1833. Nevertheless, we feel that the Commission was entitled to rely on that expert testimony in support of its conclusions with regard to the treaties themselves.

Other witnesses had testified in various earlier Pottawatomie proceedings to the effect that the Pottawatomie tribe was divided into politically autonomous bands. The Commission majority gave short shrift to this testimony, obviously finding more credible the testimony of appellees’ witnesses. Such a choice among witnesses is entirely proper and is in fact an important function of the Commission, the stautory fact-finding body in these cases. The statement by the Commission that only appellees’ witnesses were “shown to be expert in the matter here at issue” does not suggest, that the other witnesses’ testimony was ignored. On the contrary, the majority’s findings of fact include a summary of the autonomous band theory championed by appellants’ witness Dr. Wallace.

According to the expert testimony believed by the Commission, the Pottawatomie tribe, though consisting of many communities with local chiefs and functionaries, had an overall structure with a single, hereditary “principal chief” named Topenebee. During the period 1795 — 1833 there were in fact two Topenebees, father and son. The evidence shows that in 1833 a chief of the Pottawatomies in the Chicago-Milwaukee area referred to Topenebee, who lived in southwest Michigan, as the principal chief of all Pottawatomies, a position inherited from his deceased father. Topenebee’s rank is borne out by his signature on several of the treaties during the period 1795 — 1833. In no less than five treaties he was described as “principle chief of the nation,” “principal chief of the Potawatamie tribe of Indians,” or by another similar title. Appellants and the Commission minority argue that Topenebee was in fact chief only of the “St. Joseph band” of Pottawatomies, and that if the United States, which drafted the treaties, thought otherwise, it was misinformed. While we do not accept these contentions, we note in any case that we have previously held that if the United States deals with a tribe as a unit, the tribe is bound by its treaties as a unit, regardless of whether a particular band may view itself as politically independent. Joseph’s Band of the Nez Percé Tribe v. United States, 95 Ct.Cl. 11 (1941). The references to Topenebee’s rank, and other treaty evidence discussed infra, indicate that the United States believed it was obtaining title to lands ceded in the various treaties from the Pottawatomies acting as a nation.

Pottawatomie Indians were classified by the experts as “Central Algonquin” Indians, distinguishable from “Northern Algonquins” such as the Chippewas and Ottawas. Central Algonquin Indians tended to be more highly organized politically and had a more centrally organized tribal structure.

The first of the treaties with the Pottawatomies during the 1795 — 1833 period was the Treaty of Greenville, 7 Stat. 49 (1795), and the Commission attaches special significance to it. The Treaty of Greenville was negotiated between the United States and 12 tribes of Indians, including the Pottawatomies. Its purpose was to set an overall boundary between Indian and “white man’s” lands; it did not set any boundaries among the Indians themselves. Under the treaty, the United States recognized the Indians’ title to an area “lying north of the Ohio River, east of the Mississippi River, and west and south of the Great Lakes and the waters uniting them, according to the boundary line agreed on by the United States and Great Britain in the Treaty of 1783, * * *.”

There is no dispute that the 240 Potta-watomies present at Greenville represented all of the groups or communi- ° ties of Indians in the tribe. Appellants assert, however, that the various chiefs were there as representatives of five autonomous bands of Pottawatomies rather than as representatives of one land-owning tribal entity. The Commission found otherwise. Our examination of the evidence, which is, frankly, mixed, leads us to conclude that the Commission’s finding is supported by substantial evidence and must be upheld. The Commission was particularly influenced by the United States consistent references, in the treaty language itself as well as in the negotiations preceding the agreement, to the Pottawatomies as a tribe. At the conclusion of the negotiations, for example, the United States negotiator, General Anthony Wayne, asked each tribe whether it was prepared to sign the treaty; when he called out “Pottawato-mies,” they responded , unanimously and in unison, “yes.”

While we uphold the Commission in its determination that the Pottawatomie tribe as a unit agreed to the Treaty of Greenville, and that the United States considered itself as dealing with one tribe in the negotiations, we do not agree with a second, essentially legal, inference drawn by the majority from that agreement. The majority states that because the entire Pottawatomie tribe acted as a unit at Greenville, future treaties would “in the ordinary course, encompass the interest of the whole tribe,” appearances to the contrary notwithstanding. We find this inference less than persuasive because, so far as the evidence shows, the Treaty of Greenville did not affect the Pottawatomie land-holding status quo. There is, in other words, no indication that any group or band of Pottawatomie Indians was required, as a result of the treaty, to give up lands it then occupied. Because no land interest of any particular group or band of Pottawatomies was sacrificed, there was no cause for such a group to assert any independent rights at Greenville. Thus, the fact that the United States dealt with the Pottawato-mies as one nation at Greenville was not conclusive on subsequent treaties. Nevertheless, we believe that the subsequent treaties and treaty events establish in their own right the unified political structure of the Pottawatomie nation.

The Commission discusses some 11 treaties in addition to the treaty of October 20, 1832, the focus of our present inquiry. It is not possible or necessary to examine each treaty fully in this opinion; our intent is rather to be selective, highlighting those treaties and facts which most clearly show the Commission’s decision is indeed supported by substantial evidence.

Under the treaty of November 17, 1807, 7 Stat. 105, the “Pottawatamie nations of Indians” and other Indian nations ceded Royce Area 66 in southeastern Michigan and northwestern Ohio. Article II of the treaty provided for payment of $1,666.66 to the “Pottawatamie nation.” An annuity of $400 was provided to “such of the Pottawatamies, as now reside on the river Huron of lake Erie, the river Raisin, and in the vicinity of the said rivers.” Though the land ceded was occupied by only one group of Pottawatomies, the entire nation received the $1,666.66 payment. The $400 annuity provided for the portion of the nation which actually was living on the cession was, the Commission reasonably concluded, recognition of the local interest or special loss of that lesser group. We have in this treaty, therefore, an element missing in the Treaty of Green-ville: a cession of land occupied by only one group of Pottawatomies, where the United States nevertheless recognizes a national or overall interest of the tribe.

By treaty of October 2, 1818, 7 Stat. 185, the Pottawatomies ceded Royce Area 98 in west-central Indiana and east-central Illinois, as well as all land south of the Wabash River. Although the cession was located in an area occupied, according to the appellants’ terminology, by the Prairie and Wabash bands, the treaty was signed by Pottawatomie chiefs representing all parts of the tribe. Furthermore, the United States pledged in Article 3 to pay the “Potawatamies” a permanent annuity of $2,500, one-half to be paid at Detroit, the other half at Chicago. Both Detroit and Chicago lie outside the areas then inhabited by the Prairie and Wabash bands.

The pattern continues in the treaties of August 29, 1821, 7 Stat. 218, and October 16, 1826, 7 Stat. 295. The 1821 treaty involved Royce Area 117 in Michigan and Indiana, but the negotiations were held at Chicago, and Pottawatomie signatories included chiefs from the Chicago area. The treaty recognized Topen-ebee as “principal chief of the Potwata-mie nation,” and the United States obligated itself to pay the “Potawatamie nation” a $5,000 annuity. Royce Areas 132 and 133, ceded under the 1826 treaty are located in Indiana, but signatories to that treaty included chiefs from all Pottawatomie communities. Topenebee was again recognized as principal chief. The United States, among other things, agreed, in Article 3, “to pay to the Pota-wattamie tribe, an annuity of two thousand dollars in silver, for the term of twenty-two years, * * *.”

Before turning to the October 20, 1832 treaty, we would note that the pattern of dealings between the United States and the Pottawatomie tribe, as recounted above, is similar to that which we found in Joseph’s Band of the Nez Percé Tribe v. United States, supra. The Nez Percé tribe was made up of several bands, including one known as Joseph’s band, named after its chief. Some time prior to 1855 an Indian named “Lawyer” had come to be recognized as head chief by most of the tribe and was so treated by the United States in negotiating certain treaties of 1855 and 1863. The treaty of 1855 was signed by Lawyer and other chiefs, including Joseph. This treaty did not, however, cede any of the lands claimed by Joseph. By treaty of 1863 more land was ceded to the United States; the treaty was signed by Lawyer, but Joseph and some other chiefs refused to sign or recognize the treaty. We held that Joseph and his band were bound by the 1863 treaty. Joseph’s participation in the 1855 treaty, in which his own lands were not involved, indicated, we held, that there was a power in the tribe to act as a whole with reference to all lands.

We have seen that the United States and Pottawatomies recognized Topenebee as the principal chief, and further that many Pottawatomie chiefs signed treaties in which none of the lands occupied by their bands were among those ceded. The Commission is therefore justified in finding that where, in some instances, a portion of the Pottawatomie nation appears to claim an independent interest in land it occupies, the land is, in fact, owned by the tribe as a whole, and any treaty should be interpreted consistently with that fact.

In October of 1832 three treaties were signed at Camp Tippecanoe, Indiana. The preamble of the first treaty, that of October 20, states that the parties to the agreement are the “United States” and the “Chiefs and Headmen of the Pota-watamie Tribe of Indians of the Prairie and Kaukakee.” In Article I, the “said Potawatamie Tribe of Indians” ceded to the United States what we now refer to as Royce Area 177, located in Illinois southwest of Chicago. Article II provided reserves of land for certain individual Indians. In consideration of the cession, the United States agreed in Article III to pay the “aforesaid Potawatamie Indians, an annuity of fifteen thousand dollars for the term of twenty years.” Indians Billy Caldwell, Alexander Robinson, and Pierre LeClerc were also promised annuities during their natural lives. Article IV provides, inter alia, that the “said tribe” would be permitted “to hunt and fish on the lands ceded, as also on the lands of the Government on Wabash and Sangamon rivers, so long as the same shall remain the property of the United States.”

Appellants interpret the preamble of the treaty literally, asserting that the real party in interest on the Indian side was the Pottawatomie tribe “of the Prairie and Kaukakee,” i. e., the “Prairie band.” There are contemporaneous documents which tend to support this interpretation, the most powerful of which is a report of treaty commissioners dated December 6, 1832. The report states in part:

Commencing our negociations (sic), with the Pottawatomies, there seemed to be, a local interest claimed by different bands; in relation to their relative rights to the soil, not well to be adjusted without seperate (sic) Treaties. With those of the prairie, we have therefore negociated (sic) a treaty, by which, they have ceded, their right of soil in the State of Illinois, east of the Rivers, Plein and Illinois; * * *

In spite of this report, however, the United States appeared to recognize the national, in addition to the local, interest of the Pottawatomie Indians. Though the treaty ceded land allegedly occupied by the Prairie band, signatories to the treaty included chiefs from the Chicago-Milwaukee and Indiana areas which, according to the autonomous band theory, were occupied by the United Nations band and Wabash band. The participation by the Indiana chiefs might possibly be explained, and the minority attempts to do so, by the fact that the treaty negotiations were held in Indiana. However, the participation by chiefs from the Chicago-Milwaukee area, which cannot be similarly explained, fits the pattern we have seen in earlier treaties. Moreover, those Chicago-Milwaukee chiefs were not just “along for the ride”; the United States officially recognized their interests by granting certain of them individual reserves of land.

Two other treaties emerged from the October meetings at Camp Tippecanoe: those of October 26 and October 27, 1832. They have a bearing on the October 20 treaty because the Commission viewed the three as complementary to one another, in effect constituting a single transaction. By treaty of October 26, 1832, 7 Stat. 394, “Chiefs, Headmen and Warriors, of the Pottawatimie Indians” ceded Royce Area 180 in northwestern Indiana, to the east of and contiguous with, Royce Area 177 ceded on October 20. The signatories to the treaty consisted solely of chiefs from Indiana. The October 27 treaty, 7 Stat. 399, was concluded by the United States and “Chiefs and Warriors of the Potowato-mies, of the State of Indiana and Michigan Territory.” Under Article I, those Indians ceded “their title and interest to lands in the States of Indiana and Illinois, and in the Territory of Michigan, south of Grand river.” Among the Indian signatories was principal chief Topen-ebee. Unlike the October 20 and October 26 treaties, the October 27 treaty did not cede land by metes and bounds, but by a general quitclaim. It is agreed that the end result of the treaty was the cession of Royce Area 181 in Indiana.

The Commission’s determination that all three of the October 1832 treaties constituted a single transaction is based upon various contemporaneous documents, the majority of which we find subject to more than one interpretation. A statement made by an Indian trader named George W. Ewing in a deposition of October 1, 1862, is however, of interest. He deposed that one of the Indian agents present at Camp Tippecanoe, General John Tipton, was reported to have stated on October 26, 1832, that the treaties of October 20 and 26 would be for naught unless the United States entered into a third treaty in which the United States could obtain the “national right” of the Pottawatomies in the lands ceded by those earlier treaties. Tipton’s alleged statement might tend to explain why the October 27 treaty was a broadly described quitclaim cession, rather than a cession by metes and bounds. However, Ewing’s deposition, which is double hearsay and 30 years after the fact, can be given little weight. In sum, we are not convinced that the three treaties constituted one transaction; nevertheless, we do not think that the “one transaction” finding is essential to the Commission’s conclusion that the October 20, 1832 treaty cession, like all others in the 1795 — 1833 period, was by the Pottawatomie tribe as a single land-owning entity.

Further reference should be made to the annuity payments made by the United States to the Pottawatomies pursuant to the various treaties we have been discussing. The identity of the recipients of the annuities, and whether the annuities were paid according to “bands” or distributed to all Pottawatomies per capita, are questions, the answers to which would be significant in assessing whom the United States viewed as treaty parties. The Commission cites evidence which it believes indicates that the payment of annuities was to all Pottawatomies on a per capita basis. Appellants and the Commission minority dispute the majority’s interpretation of the evidence. The minority concludes that “[a]t this late date it is impossible to ascertain how, on what basis, or to whom annuities under Potawatomi treaties were actually paid during much of the period from 1817 through 1856.”

While we can understand the reasons which led the minority to the above conclusion, we also believe that the Commission’s more positive conclusion is supported by substantial evidence and must be upheld. Two examples should suffice. H.R.Exec.Doc. No. 61 is an 1869 report by Indian commissioners of Pottawatomie claims under the various treaties to which the Pottawatomie nation was a party. The report was referred to the Committee on Indian Affairs and ordered to be printed. The major part of the document is a listing of payments made on a treaty-by-treaty basis. The document uses the terms “Pottawatomie Indians” and “Pottawatomie Claims”; nowhere is there an indication that payments were made to a band or bands of Pottawatomie Indians. A second document is a letter of April 16, 1825, by Lewis Cass, who during his career was Superintendent of Indian Affairs at Detroit, Governor of Michigan Territory, Commissioner of Indian Affairs in the War Department, and Secretary of War. He wrote in the letter that annuities were the “consideration paid by the United States for valuable cessions made by the Indians in their national character.”

We reject the contention of appellants that the Commission somehow violated this court’s mandate in Hannah-ville Indian Community v. United States, supra, by determining that the Pottawatomies formed a single political unit during the period 1795 — 1833. We were aware in Hannahville that the Commission had previously found, in an order involving different treaties and different lands, that the Pottawatomies were divided into autonomous bands. We held that those findings were not res judicata on the issue in the instant case. We have no reason to believe that the Commission ignored, in its more recent decision, the evidence it relied upon for its earlier determination. It is clear that, with the benefit of the additional expert testimony taken in the de novo hearing, the Commission reassessed the documentary evidence and arrived at a different conclusion.

To conclude, we affirm the Commission’s determination that during the period 1795 — 1833, the Pottawatomie nation was a single land-owning, political entity. We hold that lands ceded under the treaty of October 20, 1832, were owned and ceded by that Pottawatomie nation.

Affirmed.

      . Appellants claim to be descended from that band or bands of Pottawatomies which, appellants contend, were the ceding party in the October 20 treaty. Appellees Hannahville Indian Community, et at, make no such claim and would share in any award only if all Pottawatomies shared alike.

      . 27 Ind. Cl. Comm. 187 (1972). The decision was by a majority of three, two commissioners dissenting in an extended minority opinion.

      . 25 U.S.C. § 70s(b) (1970).

      . 27 Ind. Cl. Comm, at 192.

      . Miami Tribe of Oklahoma v. United States, 175 F.Supp. 926, 930-931, 146 Ct.Cl. 421, 429 (1959). In Miami Tribe we discuss the Treaty of Greenville in detail.

      . 27 Ind. Cl. Comm, at 194. The majority cites Yuchi Tribe v. United States, 145 F.Supp. 206, 136 Ct.Cl. 433 (1956), cert. denied, 352 U.S. 1016, 77 S.Ct. 558, 1 L.Ed.2d 546 (1957), in support of its inference. In Yuchi Tribe we held that the Yuchi tribe of Indians was part of the Creek nation and was bound by Creek nation treaties. We did so because certain acts of the Yuchis demonstrated their allegiance to the nation. In the instant case, however, for reasons explained infra, we do not feel that Pottawatomie unity was irreversibly established by the Greenville Treaty. The facts differ in these cases.

      . Appellants refer to this group as the “Huron band.”

      . 27 Ind. Cl. Comm, at 459.


author: PER CURIAM:

text:
    The UNITED STATES of America v. The FORT SILL APACHE TRIBE OF the STATE OF OKLAHOMA et al.
    Appeal No. 19-74.
    United States Court of Claims.
    Dec. 18, 1974.

      Dean K. Dunsmore, Washington, D. C., with whom was Asst. Atty. Gen. Wallace H. Johnson, for appellant.
    I. S. Weissbrodt, Washington, D. C., attorney of record for appellees. Richmond F. Allan, Billings, Mont., of counsel.
    Before CO WEN, Chief Judge, and NICHOLS and KUNZIG, Judges.
   ON APPELLEES’ MOTION TO PARTIALLY DISMISS APPEAL

PER CURIAM:

The Government has filed notice of appeal from the Indian Claims Commission decisions in regard to the following:

1. the order of September 13, 1972, grouping plaintiffs’ claims into “group A” (claims dealing with the removal of certain resources and the use of Indian lands prior to taking), and “group B” (claims seeking an accounting of the Government’s handling of plaintiffs’ land and property while the Apache were prisoners of war at Fort Sill);
2. the order of November 29, 1972, denying the Government’s motion to dismiss the “group B” claims for (a) lack of subject matter jurisdiction, (b) failure to state a claim upon which relief can be granted, (c) statute of limitations, (d) res judicata, and (e) the doctrine against splitting a cause of action;
3. the interlocutory order of May 10, 1974, finding the United States liable as to the “group A” claims (the interlocutory nature of the order is due to the postponement of the determination of offsets);
4. the order of June 19, 1974, severing the “group A” claims and “group B” claims into Docket Nos. 182 — A and 182 respectively, so as to allow progress on “group B” claims while “group A” claims are appealed. Plaintiff concedes that the appeal of

part 3 is timely, but moves to dismiss the other 3 parts (1, 2, and 4) of the appeal for lack of jurisdiction under 25 U.S.C. § 70s, which in pertinent part reads as follows:

* * * In similar manner and with like effect either party may appeal to the Court of Claims from any interlocutory determination by the Commission establishing the liability of the United States notwithstanding such determination is not for any reason whatever final as to the amount of recovery; * * *

In United States v. Fort Sill Apache Tribe, 202 Ct.Cl. 525, 481 F.2d 1294 (1973), this court previously dismissed an earlier attempt by the Government to take an interlocutory appeal of parts 1 and 2 under 25 U.S.C. § 70s. We grant the plaintiff’s motion to dismiss parts 1 and 2 again and to dismiss part 4, for essentially the same reasons as given in the earlier Fort Sill Apache Tribe case.

I

A review of 25 U.S.C. § 70s, in light of comparable statutes applicable to Federal District Courts, 28 U.S.C. §§ 1291, 1292, shows a great similarity and amplifies the conclusions drawn from the separate legislative history of § 70s in Fort Sill Apache Tribe, supra.

Both this court and the other Federal courts were long bound by a tradition allowing appeal only of final decisions. (See generally, 9 J. Moore, Federal Practice, K 110. (2d ed. 1973)). This tradition is codified in both § 70s and § 1291. However, limited exceptions (primarily in equity and admiralty) were allowed, and these were codified in recent times in § 70s, here involved (appeal of findings of Government liability), and § 1292(a) (preserving traditional interlocutory appeals in equity and admiralty, as well as liability decisions in bankruptcy and patent infringement cases where lengthy accounting processes follow upon liability determinations.) In addition, to cover other unique situations, a certification process has also been enacted into § 70s and § 1292(b).

Given the nearly total parallelism between § 70s and §§ 1291, 1292, and recognizing that Congress had no other Federal appellate system to model this court’s statutes on, the inescapable conclusion is that Congress intended § 70s to be interpreted as similar to §§ 1291, 1292. Thus case law under §§ 1291, 1292 is available for analysis of the problem here (which appears to be a novel question for this court, with no considered precedents other than Fort Sill Apache Tribe, supra.)

II

Once it is determined what case law is applicable, this case resolves itself into two issues: (1) Are the various parts of the Government’s appeal reviewable under interlocutory appeal jurisdiction? and (2) Are the various parts of the Government’s appeal reviewable as final decisions?

Part 3 of the appeal is easiest to deal with. Both parties concede it is appealable. Since the decision is not final — offsets must be determined — since the Indian Claims Commission labeled it an interlocutory liability decision, and since it fits the statutory description of an interlocutory decision finding the United States liable, one is forced to conclude that part 3 is properly reviewable.

Thus while part 3 is properly reviewable at this time, it is NOT a final decision to which may be added other matters for appeal, if they are orders in unrelated matters not part of the foundation of the decision appealed from. Thus each of the other parts must be examined on its own merits.

By this standard, Fort Sill Apache Tribe, is res judicata against interlocutory appeal of parts 1 and 2. And, whether or not collateral estoppel works against part 4 because of its similarities to part 1, Fort Sill Apache Tribe is equally applicable to part 4 and similarly bars part 4. There is no certification here or liability determination in parts 1, 2, and 4, to provide jurisdiction for an interlocutory appeal of these parts.

Defendant’s theory is that an allowable interlocutory appeal can be made to carry with it all previous orders and rulings whether or not separately appealable. This is true only to the extent they enter into the appealable ruling and are subsumed thereby. Defendant here wants its proper appeal to carry along wholly unrelated holdings.

In addition to a lack of basis for interlocutory appeal of parts 1, 2, and 4, neither do they qualify under the finality doctrines developed in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); and Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964).

Parts 1 and 4 of the appeal are procedural determinations with no independence apart from the overall case. No parties are added or dropped, nor is the nature of the claims altered. They would be nearly impossible to review separately from the entire case. Thus they fail the Cohen tests (Cohen, supra, 337 U.S. at 545-546, 69 S.Ct. 1221) of (1) separability, (2) importance, and (3) urgency. Furthermore, absent some compelling harm, they are the type of internal housekeeping rules that appellate bodies should be loath to interfere with, any more than this court would want some outside court or body dictating our internal rules and procedures. The Third Circuit in Nolfi v. Chrysler Corp., 324 F.2d 373 (1963), similarly declined to interfere in trial procedures of this type when reviewing a case under § 1291 and the Cohen/ Gillespie cases.

Part 2 of the appeal has elements which at times have caused the courts to invoke the Cohen/ Gillespie cases even absent a certification from the trial court. But still the Government has shown no such importance or urgency in this case that would invoke the Cohen/ Gillespie rule. No certificate has issued here. And there is no confusion or prejudice of mixing parties and defenses, such as occurred in Garber v. Randell, 477 F.2d 711, 715 (2d Cir. 1973), which compelled the Second Circuit to intervene and partially undo a trial court’s consolidation order.

In conclusion, Fort Sill Apache Tribe is res judicata on parts 1 and 2, and good law as far as part 4 of the Government’s appeal. Absent any compelling reason not to follow the precedent of Fort Sill Apache Tribe, the motion to dismiss the appeal, insofar as parts 1, 2, and 4 are concerned, is granted.


author: ALFRED T. GOODWIN, Circuit Judge: ELY, Circuit Judge

text:
    FOOD INDUSTRIES RESEARCH AND ENGINEERING, INC., a Washington corporation, Appellant, v. STATE OF ALASKA et al., Defendants, Greater Anchorage Development Corp. et al., Appellees.
    No. 73-3023.
    United States Court of Appeals, Ninth Circuit.
    Nov. 19, 1974.
    Walter H. Garretson (argued), Anchorage, Alaska, for appellant.
    Walter W. Cardwell, III (argued), Richard F. Lytle (argued), Houston & Lytle, Anchorage, Alaska, for appellees.
    Before BROWNING, ELY and GOODWIN, Circuit Judges.
   OPINION

ALFRED T. GOODWIN, Circuit Judge:

Plaintiff engineering firm appeals from a summary judgment denying recovery of the price of engineering services and quantum meruit relief. The district court held that the contract under which the services were performed was illegal from its inception because the engineers had not qualified to perform professional services in Alaska prior to entering into the contract.

The equities favor the engineers. Their plans were utilized in construction of the building. The illegality of the contract was a matter of inadvertence and bad timing. One of the engineers’ officers applied for the requisite certification less than a month after the contract was made. The illegality caused no loss to the appellees. The engineers were at all times qualified to perform engineering services in the state of Washington, and obtained qualification in Alaska before the two final phases of the contract had been performed. Finally, the appellees’ agent appears to have been aware of the possibility that the engineers had not qualified to do business in Alaska. Less than three months after the contract was signed the agent wrote to the appellant’s head of engineering:

“The other thing I wanted to ask, Dee, are you licensed in Alaska? If not I believe state law requires an architect licensed in Alaska to stamp the plans. But this can be easily taken care of.”

Though the equities favor the appellant, a prior decision of this court does not. In Hedla v. McCool, 476 F.2d 1223 (9th Cir. 1973), we held that a firm of Seattle architects who were not qualified in Alaska could not recover on a contract to design a building to be constructed in Alaska. We relied on the same statute that is at issue here. We also refused quantum meruit relief, on the basis of an Ene-educated guess that Alaska would follow the common-law rule that a party to an illegal contract cannot recover in quasi contract for the benefit conferred. 476 F.2d at 1227.

The substantive holding in Hedía was, at the time it was written, an educated guess on a question of state law. Hedía is useful as precedent only to the extent that it reflects the current state of Alaska law.

Two recent Alaska Supreme Court decisions suggest that the proper course now is to remand the case to the district court for further consideration in light of new Alaska precedent. In Gates v. Rivers Construction Co., 515 P.2d 1020 (Alaska 1973), the Supreme Court of Alaska enforced an employment contract which violated the immigration laws of the United States. Recognizing the general rule that an illegal contract is unenforceable, the court noted that there were many exceptions to this rule. It placed particular significance on the fact that the statute making the contract illegal contained no specific declaration that the labor or service contracts of aliens seeking to enter the United States for the purpose of performing labor should be void.

“ -» * * ipjjg statute only specifies that aliens who enter this country for such purpose, without having received the necessary certification, ‘shall be ineligible to receive visas . and shall be excluded from admission into the United States.’ ” 515 P.2d at 1022.

The court contrasted the current statutory language with the language of the predecessor statute, which expressly made such contracts void and of no effect, and inferred that Congress, by omitting the “void” language, intended to allow such contracts to be enforced. 515 P.2d at 1022-1023.

The engineers here compare the Alaska engineer-registration statute, which contains no express “void” clause, with the Alaska contractor-registration statute, which does provide that no action may be brought on a contract entered into prior to registration.

The omission of specific “void” or “unenforceable” language appears to be meaningful to the Supreme Court of Alaska. In denying relief in reliance upon Hedía v. McCool, supra, the district court did not have the benefit of the Alaska court’s recently announced view of the significance of such an omission.

A second recent Alaska case, Sumner Development Corporation v. Shivers, 517 P.2d 757 (Alaska 1974), held that the contractor-registration statute, AS 08.-18.151, precludes affirmative recovery on a contract by an unregistered contractor but permits use of the barred claim as a setoff. In the context of affirmative recovery, Sumner reiterated the view expressed in Gates v. Rivers Construction Co., supra, that action on an “illegal” contract is not necessarily barred unless the statute contains an explicit unenforceability provision. 517 P.2d at 763.

Because the statute at issue here does not contain explicit “unenforceability” or “void” language, the case should be remanded for reconsideration by the district court in light of Sumner and Gates.

Neither party is entitled to costs in this court.

Vacated and remanded.

ELY, Circuit Judge

(concurring):

In the light of certain writings of the Alaska Supreme Court, issued after the District Court’s entry of judgment, I cannot conscientiously dissent from the majority’s wish that the district judge be allowed to reconsider the dispute in the light of the subsequent state court expressions. It warrants emphasis, however, that it is not intended by the principal opinion to in any manner indicate this court’s view as to the decision that should be properly made by the District Court in its reconsideration. Speaking only for myself, I can perceive nothing in the utterances of the Supreme Court of Alaska, particularly in Gates v. Rivers Construction Co. and Sumner Development Corp. v. Shivers, cited in the principal opinion, that should induce the District Court to alter its original judgment and thus depart from our court’s holding in Hedla v. McCool, 476 F.2d 1223 (9th Cir. 1973).

      . Former AS 08.48.190, which was in effect at the time the contract was entered into, provided :
      “A registered professional engineer or architect who is not a resident of the state or does not have an established place of business in the state but who possesses the qualifications required by this chapter shall qualify under this chapter before he may solicit business for, enter into contracts for, or perform professional services requiring registration or a permit.”
      AS 08.48.190 was repealed by § 1, cli. 179, SLA 1972 (effective July 1, 1972), and replaced by a similar provision, AS 08.48.281.

      . Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

      . AS 08.18.151.
      “No person acting in the capacity of a contractor may bring an action in a court of this state for the collection of compensation for the performance of work or for breach of a contract for which registration is required under this chapter without alleging and proving that he was a registered contractor at the time he contracted for the performance of the work.”


text:
    Kim N. CONRAD, LCPL/USMC, Plaintiff-Appellant, v. James SCHLESINGER, Secretary of Defense, et al., Defendant-Appellee.
    No. 73-3183.
    United States Court of Appeals, Ninth Circuit.
    Nov. 25, 1974.

      Alex Landon, of Pancer & Landon, San Diego, Cal., for plaintiff-appellant.
    Harry D. Steward, U. S. Atty., Richard A. Block, Sp. Asst. U. S. Atty., San Diego, Cal., for defendant-appellee.
    Before TRASK, CHOY and GOODWIN, Circuit Judges.
   OPINION

PER CURIAM:

Conrad petitioned for a writ of habeas corpus contending that the Marine Corps wrongfully denied his application for separation from the Corps on the basis of conscientious objection. The district court ruled that the denial of the application was without any basis in fact, but conditioned Conrad’s release from the Corps pending completion of a court-martial sentence imposed for sale of heroin and unauthorized absence. Conrad appeals from the conditions imposed on the grant of the writ. We affirm.

While conceding that the sale of heroin charge was unrelated to the wrongful denial of the CO application, appellant contends that the denial was the “proximate cause” of his unauthorized absence and so he should not be subject to punishment for that offense. The court below found that the wrongful denial was not the proximate cause of appellant’s unauthorized absence, even though it occurred in direct response thereto — that appellant had acted unreasonably in absenting himself from duty without authorization when he had federal court remedies which he could have pursued.

Conrad on appeal contends that the court was mistaken when it held that the unauthorized absence was not the proximate result of the wrongful CO denial.

Even if Conrad’s motivation was the wrongful denial, he is not entitled to be released before completion of his sentence. Parisi v. Davidson, 405 U.S. 34, 45 n. 13, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972), makes clear that the determination of whether a wrongful CO denial may be a defense to military charges is to be left to military courts in accordance with “their special function of administering military law.” That determination has been made by the Court of Military Appeals, and it is now settled that such a denial does not constitute a defense to military criminal charges. U. S. v. Lenox, 21 U.S.C.M.A. 314, 45 C.M.R. 88 (1972).

The court-martial charges are independent of the wrongful CO denial and the writ may not be granted until the military sentence has been served.

Affirmed.

      . The Government has not cross-appealed from the decision of the district court that the denial of Conrad’s CO application was without basis in fact, so that issue is not before us.

      . Since the court-martial punishment did not specify whether the sentences were concurrent or consecutive, there is no way of determining if the “concurrent sentence rule” applies.


author: FIELD, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Hal Clemit DERRICK, Appellant. UNITED STATES of America, Appellee, v. Burnett Wendell FINCHUM, Appellant.
    Nos. 73-2381, 73-2384.
    United States Court of Appeals, Fourth Circuit.
    Argued July 22, 1974.
    Decided Dec. 3, 1974.

      John F. Dugger, Morristown, Tenn., for appellant in No. 73-2381.
    Ben W. Hooper, II, Newport, Tenn., for appellant in No. 73-2384.
    Thomas P. McNamara, U. S. Atty. (Malcolm J. Howard, Asst. U. S. Atty., on brief), for appellees in Nos. 73-2381 and 73-2384.
    Before CRAVEN, BUTZNER and FIELD, Circuit Judges.
   FIELD, Circuit Judge:

In January of 1973, a grand jury for the Eastern District of North Carolina returned an indictment charging that during the period from November 20, 1970, to May 2, 1972, Hal Clemit Derrick and Burnett Wendell Finchum, together with five other individuals, were engaged in a conspiracy (18 U.S.C. § 371) to violate the Internal Revenue Laws relating to the manufacture, possession and transportation of non-tax paid whiskey. Derrick and Finchum and all but one of the remaining defendants were found guilty by a jury and a judgment of conviction was entered on October 10, 1973. Derrick and Finchum have appealed.

The primary issue on this appeal involves one Lee Hadad who was the Government’s principal witness and who had been named in the indictment as a co-conspirator but not as a defendant. Hadad testified that he was in the bottled beverage business in Knoxville, Tennessee, and that Derrick approached him in April of 1971 about the possibility of purchasing large quantities of sugar. The parties reached an agreement and over the next ten months Hadad sold Derrick approximately 576,000 pounds of sugar. Hadad testified that he continued doing business with Derrick until July of 1972, supplying him with sugar as well as plastic jugs, and detailed the manner in which Derrick picked up these supplies, stating that on a number of occasions he was accompanied by Fin-chum. Hadad further testified that in an interview with Phillip McGuire, Special Agent for the ATF, on August 25, 1971, he admitted his dealings with Derrick and agreed to cooperate with McGuire and thereafter reported to him concerning each transaction he had with Derrick.

At the conclusion of Hadad’s direct examination the Government in compliance with the Jencks Act furnished to counsel for the defendants a copy of a thirteen page statement made by Hadad to McGuire on August 9, 1972. This statement itemized Hadad’s transactions with Derrick including information from Hadad’s business records covering the period from April, 1971, through July of 1972. In addition to these transactions the statement reflected in detail Hadad’s various contacts with Derrick and Fin-chum as well as his cooperation with Special Agent McGuire and other federal officers. Thereafter, during the course of McGuire’s testimony defendants’ counsel elicited the information that Hadad had signed another statement which, however, McGuire insisted did not relate to the present case. The defendants moved the court that they be furnished a copy of this statement which motion was resisted by the Government. The statement was presented to the district judge who examined it in camera and ruled that it did not fall within the purview of the Jencks Act since it dealt with transactions which occurred prior to those testified to by the witness in the present case. Derrick and Finchum contend that this action of the court was violative of the Act and seriously impeded their cross-examination of Hadad.

Incident to their request for the subject statement the defendants directed the court’s attention to an indictment which had been returned in February of 1973 in the Western District of Virginia which charged Finchum and Derrick, together with three other defendants, with a similar conspiracy based upon the same alleged course of conduct and covering a period from March 1, 1972, to June 26, 1972. That case was tried to a jury in the latter part of April, 1973, and all of the defendants were acquitted. In the Virginia case Hadad was also named as an unindicted co-conspirator and appeared as the principal witness for the prosecution. Derrick and Fin-chum were represented in the Virginia case by the same counsel who defended them in the present case and the Government had delivered to them a five page statement dated August 9, 1972, given by Hadad to Special Agent McGuire. This statement contained to a large degree the same information as the one in the present case with the exception that it reflected only the sugar transactions for the period between March 9, 1972, and June 20, 1972. Had-ad testified in the Virginia trial that he had given only one statement to Agent McGuire which, of course, was false. The Government, however, takes the position that the statement delivered in the Virginia trial related only to transactions germane to the conspiracy alleged to have taken place in that district, and that likewise the statement given to defendants in the present case contained information bearing only upon the conspiracy in the Eastern District of North Carolina. Similarly, the Government urges that the third statement which was requested in the present case but denied by the court relates to a possible conspiracy that took place in another district.

We think, unquestionably, the Government should have delivered to defense counsel all three of Hadad’s statements in both the Virginia trial and in the present case. The three statements covered a continuous course of conduct involving Derrick, Finchum and Hadad and the defendants’ right to inspect these documents should not be frustrated by the Government’s decision that they related to three separate conspiracies. The Act requires production of any statement “which relates to the subject matter as to which the witness testified,” and “[i]n determining whether the statements in question ‘related to’ the direct testimony of the witness, it must relate generally to the events and activities testified to.” (Emphasis in original), United States v. O’Brien, 444 F.2d 1082, 1086 (7 Cir. 1971). If the statement relates to the general context of the testimony of the witness, it is not the prerogative of the Government nor even the court to pass upon the relevancy or utility of the statement. In Jencks v. United States, 353 U.S. 657, 668-669, 77 S.Ct. 1007, 1013, 1 L.Ed.2d 1103 (1957), the Court stated:

“Because only the defense is adequately equipped to determine the effective use for purpose of discrediting the Government’s witness and thereby furthering the accused’s defense, the defense must initially be entitled to see them to determine what use may be made of them. Justice requires no less. * * * Relevancy and materiality for the purposes of production and inspection, with a view to use on cross-examination, are established when the reports are shown to relate to the testimony of the witness.”

While the purpose of the Act was to limit in certain respects the breadth of the Jencks decision “Congress took particular pains to make it clear that the legislation ‘reaffirms’ that decision’s holding that a defendant on trial in a criminal prosecution is entitled to relevant and competent reports and statements in possession of the Government touching the events and activities as to which a government witness has testified at the trial.” Brennan, J., concurring, Palermo v. United States, 360 U.S. 343, 361, 79 S.Ct. 1217, 1229, 3 L.Ed.2d 1287 (1959).

While we thoroughly disapprove of the manner in which the three statements of Hadad were handled, we nevertheless conclude that the harmless error rule saves the Government’s case. We have examined the third statement of Hadad and find that the same information disclosed therein was included in much more detail in the two statements which were made available to defendants’ counsel during the present trial and the trial in Virginia. Under these circumstances, while it is true “that only the defense is in position to determine the precise, uses that may be made of demanded documents, * * * that is not to say that the harmless error rule is never applicable in respect to the nonproduction of demanded documents.” Since defense counsel already had all of the information reflected in the third statement, the failure of the Government to produce that statement did not prejudice them in their cross-examination of Hadad. This was the conclusion reached by the Court in Rosenberg v. United States, 360 U.S. 367, 371, 79 S.Ct. 1231, 1234, 3 L.Ed.2d 1304 (1959) :

“Since the same information that would have been afforded had the document been given to defendant was already in the possession of the defense by way of the witness’ admissions while testifying, it would deny reason to entertain the belief that defendant could have been prejudiced by not having had opportunity to inspect the latter.”

See also, United States v. Missler, 414 F.2d 1293 (4 Cir. 1969), cert. denied 397 U.S. 913, 90 S.Ct. 912, 25 L.Ed.2d 93.

We have carefully considered the other points raised on these appeals and, finding them without merit, the judgments of conviction are affirmed.

Affirmed.

      . 26 U.S.C. §§ 5601(a) (1), 5601(a) (4) and 7206(4).

      . 18 U.S.C. § 3500.

      . Killian v. United States, 366 U.S. 231, 243, 82 S.Ct. 302, 309, 7 L.Ed.2d 256 (1961).


author: ALFRED T. GOODWIN, Circuit Judge:

text:
      LOCAL #1547, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, an unincorporated Labor Association, Plaintiff and Appellant, v. LOCAL #959, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, INDEPENDENT, Defendant and Appellee, National Labor Relations Board, Intervenor and Appellee.
    Nos. 73-1644, 73-2647.
    United States Court of Appeals, Ninth Circuit.
    Nov. 18, 1974.
    As Corrected Jan. 14, 1975.

      Robert M. Goldberg (arguéd), Anchorage, Alaska, for plaintiff and appellant.
    George H. Davies (argued), Vance, Davies & Roberts, Seattle, Wash., for defendant and appellee.
    Before BROWNING, ELY and GOODWIN, Circuit Judges.
   OPINION

ALFRED T. GOODWIN, Circuit Judge:

This is an action upon a “no-raid” agreement between rival labor unions. The district court, in a proceeding under § 301 of the Labor-Management Relations Act, 29 U.S.C. § 185 denied both damages and injunctive relief, on the ground that enforcement of the no-raid agreement would conflict with a decision of the National Labor Relations Board.

Local 1547 of the International Brotherhood of Electrical Workers (IBEW) and Local 959 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America (Teamsters) agreed in 1968 that neither union would organize or represent employees “in any situation where an established collective-bargaining relationship exists with the other union”.

The IBEW was the recognized bargaining representative for approximately 250 employees of ITT Arctic Services, Inc. (White Alice Communications System). In 1972, the collective-bargaining agreement between IBEW and White Alice Communications was to expire. In anticipation of this expiration, the Teamsters filed a petition under § 9 of the National Labor Relations Act, 29 U. S.C. § 159, with the NLRB for certification as the representative of the White Alice employees. The IBEW intervened in the resulting hearing before a hearing officer, emphasized the no-raid agreement, and argued that the NLRB should defer its election in order to give effect to the contract between IBEW and the Teamsters.

The Regional Director, however, issued a direction of election. The IBEW failed to request review by the full NLRB of the Regional Director’s decision. The ballots were mailed to the White Alice employees, and they voted in favor of the Teamsters.

Meanwhile, IBEW brought this action in the district court. IBEW demanded a temporary injunction restraining the Teamsters from further election activity, a permanent injunction requiring the Teamsters to withdraw their representation petition from the NLRB, and an award of damages for the alleged breach of the no-raid agreement.

The NLRB intervened in the litigation. The court granted the temporary injunctive relief and ordered the NLRB to refrain from tabulating or publishing the election results.

The NLRB filed motions to dismiss and for summary judgment contending that the district court was not authorized by § 301 to nullify a board determination made in the exercise of its statutory authority. Specifically, the NLRB argued that the district court lacked jurisdiction in a private, collateral § 301 action, to review a board determination on representation.

In due course, the district court ruled that, because the IBEW had failed to appeal the Regional Director’s decision to the full Board, the district court was without jurisdiction to hear the specific enforcement claim. 356 F.Supp. 636 (D.Alaska 1973). In addition to dismissing the specific enforcement portion of the IBEW complaint, the district court also vacated its temporary restraining order. The court later granted the NLRB motion for summary judgment, in a decision published in 361 F. Supp. 1006 (D.Alaska 1973).

I

FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

IBEW argues that the NLRB’s refusal to honor the “no-raiding” agreement was a departure from its settled, routine practice and was an illegal, invidious discrimination against the IBEW. For reasons discussed below, we need not consider the contention that the NLRB acted arbitrarily.

As noted, IBEW failed to appeal the Regional Director’s direction of election to the full Board. The NLRB’s Rules and Regulations, at 29 C.F.R. § 102.67, provide in part:

“(b) * * * The decision of the. regional director shall be final: Provided, however, That within 10 days after service thereof any party may file eight copies of a request for review with the Board in Washington, £) Q -X- * *X* *>

Under § 102.67, unexplained failure to exhaust available administrative remedies is ordinarily a bar to judicial review of agency action. See United States v. Tucker Truck Lines, 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54 (1952).

29 C.F.R. § 102.67 is explicit. The decision of the Regional Director may be appealed to the full Board. Whether or not the full Board might have routinely affirmed the Regional Director, the rationale of Tucker Truck Lines requires that IBEW seek review by the full NLRB. There is nothing about this labor representation ease which requires us to assume jurisdiction and review the Regional Director’s decision under IBEW’s theory that some of our selective-service cases, which were criminal prosecutions, have repealed the doctrine of exhaustion.

IBEW argues that Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 10 (1958), grants jurisdiction despite the failure to exhaust. Leedom involved the Regional Director’s inclusion of nonprofessional employees in a mixed unit of professional and nonprofessional employees without the consent of the professional employees. The Board did not deny that 29 U.S.C. § 159(b)(1) had been violated. In finding that an otherwise nonreviewable decision was made reviewable by unlawful Board action, the Supreme Court in Leedom v. Kyne reasoned :

“ * * * This suit is not one to ‘review’, * * * a decision of the Board made within its jurisdiction. Rather is it one to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act * * 358 U.S. at 188, 79 S.Ct. at 184.

IBEW contends that the Regional Director’s failure to defer to voluntary enforcement of the no-raid agreement constitutes action so patently discriminatory as to provide the firmest possible support for judicial intervention under Leedom. IBEW misapprehends Leedom. In the Regional Director’s refusal to defer the White Alice election to IBEW’s no-raid agreement, he violated neither statutes nor regulations. He simply ruled in a manner that did not satisfy one of the parties. This is not an unusual state of affairs.

The Supreme Court in Boire v. Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964), limited Leedom to violations of statutory guidelines, and refused to extend it to possible abuses of discretion.

It is evident that IBEW did not exhaust its administrative remedies. IBEW has cited no authority which confers upon the district court jurisdiction to review the Regional Director’s decision. Thus, we express no opinion as to the propriety of the Director’s decision to hold the election in the face of the no-raid agreement.

II

SPECIFIC-ENFORCEMENT

JURISDICTION

The specific enforceability of a no-raid agreement appears to be a question of first impression in this circuit. The competing interests which must be balanced are these: Commerce depends upon parties honoring their obligations. National labor policy is committed to employee rights recognized in § 7 of the NLRA, 29 U.S.C.A. § 157:

“ * * * to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection * *

In IBEW’s case, deference by the Regional Director to the no-raid agreement could have limited the § 7 rights of White Alice employees. The agreement theoretically could have deprived a majority of the workmen of their right to “bargain collectively through representatives of their own choosing”. At least, this is a decision the Regional Director is entitled to make. The Regional Director’s finding that a question of representation existed and his subsequent direction of election indicate that IBEW may not have been the favored bargaining agent of all White Alice employees. The choosing of a new, favored bargaining agent through a § 9 election would have been frustrated by specific enforcement of the no-raid agreement.

The Seventh Circuit Court of Appeals, exercising jurisdiction under § 301, allowed specific enforcement of a no-raid agreement. United Textile Workers v. Textile Workers Union, 258 F.2d 743 (7th Cir. 1958). IBEW urges us to do likewise.

One of our district courts has taken the other view. International Union of Doll and Toy Workers v. Metal Polishers Union, 180 F.Supp. 280 (S.D.Cal.1960). Judge Mathes’s opinion recognized the inherent conflict between the § 301 grant of district court jurisdiction and that portion of the National Labor Relations Act, 29 U.S.C. §§ 159(b), (c), granting jurisdiction to the National Labor Relations Board to hear questions pertaining to representation.

In Doll and Toy Workers, the raiding union and the Regional Director of the NLRB moved for dismissal, asserting that the district court lacked subject-matter jurisdiction. The incumbent union, citing Textile Workers and § 301, urged the district court to accept jurisdiction. Judge Mathes, emphasizing the broad judicial construction of the grant of power given the NLRB in the National Labor Relations Act (see cases cited at 180 F.Supp. 284), took note of the overlap of jurisdiction between the district court (LMRA § 301, 29 U.S.C. § 185) and the NLRB (NLRA §§ 7, 9, 10, 29 U.S.C. §§ 157, 159, 160). He concluded that the preferred policy was to confer representation-dispute jurisdiction upon a single tribunal. Faced with two statutes, one appearing on its face to grant jurisdiction to the district court and the other to the NLRB, Judge Mathes concluded that the NLRB should be awarded exclusive representation jurisdiction.

“ * -x- -x- [Tjhere can be little doubt that the Congress expressly empowered an administrative agency to deal with disputes as to employee representation, because such matters invariably concern more than the interests of the litigants themselves. The interests of the public, of the industries affected, of the unions affected, as well as the individual employees’ right to choose freely their bargaining representatives, all must be considered. An administrative agency, with its flexible procedures, is obviously better able to evaluate all these competing interests, and to determine as well the permissibility of non-raiding agreements in this area, than is a court * * [Citation omitted.]
“While my great respect for the learning and acumen of the distinguished Court of Appeals for the Seventh Circuit naturally gives me pause in differing with United Textile Workers of America, A.F.L.-C.I.O. v. Textile Workers Union, supra, the considerations discussed nonetheless impel for me the conclusion that effec-tuation of the policy of the National Labor Relations Act, in specifically granting jurisdiction to the National Labor Relations Board over representational disputes, restricts ex necessitate the literal meaning of the language in § 301(a) of the Taft-Hartley Act conferring jurisdiction upon the District courts to enforce agreements ‘between any such labor organizations.’ * * * [Citation omitted.]

“The same considerations impel the further conclusion that the non-raiding agreement between plaintiff and defendant unions in this case cannot be permitted to circumvent the policy of the National Labor Relations Act by ousting or limiting the jurisdiction of the Board * * *. [Citations omitted.]” 180 F.Supp. at 286.

We agree that the district court lacked jurisdiction to grant specific enforcement of the no-raid agreement after the NLRB had ordered an election. The superior authority of the Board in representation matters, combined with the paramount employee right of free choice under § 7, requires the district court to defer to Board action. We do not hold that a no-raid agreement is never enforceable by a district court in a § 301 proceeding. However, when such enforcement conflicts with valid action taken by the Board, the latter must prevail.

Our holding that the, district court lacked jurisdiction to grant specific enforcement of the no-raid agreement is consistent with, if not controlled by, the Supreme Court’s recent decision in NLRB v. Magnavox Co., 415 U.S. 322, 94 S.Ct. 1099, 39 L.Ed.2d 358 (1974). Magnavox involved a collective-bargaining agreement which, in effect, restricted employee on-premises distribution of literature. The Supreme Court held that a bargaining representative cannot contractually waive the workmen’s § 7 right to free choice of bargaining representatives. Similarly, the no-raid agreement entered into by IBEW cannot be allowed to restrict the White Alice employees’ § 7 rights.

Ill

IBEW’S DEMAND FOR DAMAGES

The district court held that the incumbent IBEW could not recover damages for the Teamsters’ alleged breach of the no-raid agreement.

In denying damages, the district court placed great weight upon language the Supreme Court had employed in another context when it ordered arbitration:

“Should the Board disagree with the arbiter, by ruling, for example, that the employees involved in the controversy are members of one bargaining unit or another, the Board’s ruling would, of course, take precedence ; and if the employer’s action had been in accord with that ruling, it would not be liable for damages under § 301 * * Carey v. Westinghouse Electric Corp., 375 U.S. 261, 272, 84 S.Ct. 401, 409, 11 L.Ed.2d 320 (1964).

The language “and if the employer’s action had been in accord with that ruling, it would not be liable for damages under § 301” is dictum in the Carey context. The Supreme Court has not applied this language to a breach of a no-raid agreement. And we would be unwarranted in predicting that the Supreme Court would categorically deny damages if it were faced with a damage question like the one before this court.

Carey involved a jurisdictional dispute between two unions, with an employer in the middle. Carey established that the NLRB, and not an arbitrator, is the final authority on the designation of bargaining units for the various employees. Thus, if the employer had bargained with a unit which ultimately prevailed before the Board, no damages would lie in a § 301 action. This result is analogous to the enforcement of any contract. If A and B enter into a contract, and litigation results from an alleged breach, the trial court (or the arbitrator) may find in favor of A. The appellate court (or the NLRB) may in due course find in favor of B. A does not, by winning the first decision, become entitled to damages. The Carey case precludes the award of damages against an employer who is in compliance with the NLRB determination, even though the employer may have refused to bargain with the union that “won” the antecedent arbitration. The primacy of the NLRB’s decision supersedes any damage award made by an arbitrator, just as an appellate-court decision reversing a trial-court judgment supersedes that judgment.

The factual and policy considerations concerning a no-raid agreement present a different set of problems. Where a collective-bargaining contract has only one enforceable standard, a no-raid agreement may have two. When specific enforcement is demanded, and the no-raid agreement conflicts with an NLRB decision, the district court lacks jurisdiction to enforce the agreement, because such enforcement would frustrate § 7 rights. The real parties in interest are the employees. Treaties between two unions cannot override the § 7 rights of workmen to select their own bargaining representatives. However, when considering the remedy of damages, the contracting parties, the unions, are the real parties in interest.

We do not wish to establish a precedent which renders worthless all written no-raid agreements, historically important to labor-relations stability. There may be cases in which bad faith or predatory organizing practices are so patently offensive to the orderly resolution of interunion competition that recourse to damages should be available as a contractual remedy. On the other hand, if the “raid” occurs at the invitation of the raided union’s members, an award of damages may well have a chilling effect on protected § 7 activities, and would thus be inappropriate. The facts in each case should control.

The propriety of a damage award for a breach of a no-raid agreement requires the kind of factual determination that can best be made after a trial. The decision ought to be reached by balancing the conduct of the parties against their agreement. This standard is not offensive to the Magnovox doctrine. If the “raid” is not motivated by the members of the raided union, but takes place because of an intentional breach of the contract by the raiding union, an award of damages against the predatory union would not interfere with anyone’s § 7 rights. The raided union members would presumably have enjoyed their rights, and the raiding union, in paying damages, would be receiving the treatment predictably accorded those who breach their contracts. An interunion contract, even though unheeded by the NLRB, need not be deemed a worthless scrap of paper between the two signatory parties when only their rights are involved.

We conclude that it is one thing to deny specific enforcement when the agency charged with supervision of union elections has determined that the best interests of union democracy will be served by an election, and it is quite another to say that even the most outrageous predations by one union upon another can be carried out without fear of any retribution.

Accordingly, we vacate the summary judgment entered below insofar as it denied IBEW an opportunity to attempt to prove a claim for damages. We express no opinion upon the ultimate liability of the Teamsters for damages in this case, as the facts have not yet been developed by trial or stipulation. All other parts of the district court judgment are affirmed.

Affirmed in part; vacated and remanded in part.

      . 29 U.S.C. § 185 (a) provides :
      “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.”

      . The “no-raiding” agreement between IBEW and the Teamsters provided :
      “The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (and its affiliates), hereinafter referred to as the IBT, and the International Brotherhood of Electrical Workers, hereinafter referred to as the IBEW, in order to promote harmonious relations and achieve the fullest cooperation between the IBT and the IBEW and to encourage mutual aid and assistance and to resolve amicably any disagreements which may exist between the two unions, hereby agree as follows :
      1. Each union agrees to refrain from organizing or representing employees in any situation where an established collective bargaining relationship exists involving the other union. For the purpose of this provision, the term ‘established collective bargaining relationship’ means any situation in which either union (a) has been recognized by the employer as the collective bargaining representative of the employees involved, or (b) has been certified by the National Labor Relations Board or other federal, state or provincial agency as the collective bargaining agent of the employees.
      2. Each union further agrees to refrain from intervening or interfering in any organizing or election campaign undertaken by the other union in a previously unorganized unit, or a unit represented by a union not a party to this agreement.
      3. If any dispute over the implementation of this agreement shall arise at the local union level, settlement shall first be sought between the District Vice President of the IBEW and the Area Conference Director of the IBT. Upon their failure to reach agreement, tire dispute shall be settled by the International Presidents of both unions or their designated representatives.
      4. Either union may terminate this agreement by giving the other union six months’ notice in writing.
      “Executed in Washington, D.C. this 21st day of October’, 1968.”

      . The court set out a frequently quoted rationale of the doctrine of exhaustion, in the following language:
      “ * * * [OJrderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts. It is urged in this case that the [Interstate Commerce] Commission had a predetermined policy on this subject which would have required it to overrule the objection if made. While this may well be true, the Commission is obliged to deal with a large number of like eases. Repetition of the objection in them might lead to a change of policy, or, if it did not, the Commission would at least be put on notice of the accumulating risk of wholesale reversals being incurred by its persistence. Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.” 344 U.S. at 37, 73 S.Ct. at 69.

      . See, e. g., Donato v. United States, 302 F.2d 468, 470 (9th Cir. 1962).

      . See 29 C.F.R. § 101.18(a).

      . 29 TJ.S.C. § 159 provides :
      “ * * *
      “(b) The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof: Provided, That the Board shall not (1) decide that any unit is appropriate for such purposes if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit; or (2) decide that any craft unit is inappropriate for such purposes on the ground that a different unit has been established by a prior Board determination, unless a majority of the employees in the proposed craft unit vote against separate representation or (3) decide that any unit is appropriate for such purposes if it includes, together with other employees, any individual employed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer’s premises ; but no labor organization shall be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards.
      “(c)(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board—
      (A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees (i) wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in subsection (a) of this section, or (ii) assert that the individual or labor organization, which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as defined in subsection (a) of this section; or
      (B) by an employer, alleging that one or more individuals or labor organizations have presented to him a claim to be recognized as the representative defined in subsection (a) of this section ;
      the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.
      II * * * >>

      . See NLRB v. Weyerhaeuser Co., 276 F.2d 865 (7th Cir.), cert. denied, 364 U.S. 879, 81 S.Ct. 168, 5 L.Ed.2d 102 (1960). Cf. Boire v. Teamsters Union, 479 F.2d 778, 803 (5th Cir. 1973), where the court stated :

        a * * * /jijje parties cannot by contractual agreement divest the Board’s function to operate in the public interest, and this is so regardless of whether the contractual agreement is readied by consent or through an arbitrator’s construction * *


text:
    UNITED STATES of America, Appellee, v. Jerry Delona EVANS, Appellant. UNITED STATES of America, Appellee, v. Margarita ACOSTA DE EVANS, Appellant.
    Nos. 74-2095, 74-2096.
    United States Court of Appeals, Ninth Circuit.
    Oct. 23, 1974.
    Rehearing Denied Jan. 20, 1974.

      Kevin Mclnerney (argued), San Diego, Cal., for appellants.
    Richard E. L. Strauss, Asst. U. S. Atty. (argued), San Diego, Cal., for ap-pellee.
    Before HUFSTEDLER and GOODWIN, Circuit Judges, and WILLIAMS, District Judge.

       The Honorable David W. Williams, United States District Judge for the Central District of California, sitting by designation.

   OPINION

PER CURIAM:

These consolidated appeals challenge convictions upon multiple counts of illegal transportation of aliens and related offenses. The only issue is whether the initial discovery of incriminating evidence by government officers “poisoned” the subsequent stream of evidence and thereby fatally infected the government’s case with error. We find no such error, and affirm.

The defendants were proceeding in an automobile which, because of its innocent appearance, was “waved through” an immigration checkpoint at Oak Grove, California. As the automobile rolled through the checkpoint area without stopping, a border patrolman looked into the space behind the front seat and saw two persons who appeared to be Mexicans lying on the floor. This observation led to a pursuit, a stop, and a fruitful search.

The arrest was made in February 1974. In June 1974, this court construed Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), to preclude the stopping without a warrant, probable cause, or a founded suspicion of automobiles at a fixed checkpoint away from an international border or its functional equivalent. Had the evidence in the case at bar been discovered by means of a stop which violated Almeida-Sanchez, this case would be subject to reversal. United States v. Bowen, 500 F.2d 960 (9th Cir. 1974).

On the facts here, however, there was no unconstitutional stop and search. The officer saw only that which was observable in plain view to any person situated close to the road. We do not accept the defense theory that the diversion of motor traffic into a zone where it can be observed by officers violates any constitutionally protected expectation of privacy.

Affirmed.