author: HEANEY, Circuit Judge.

text:
    Loren L. BROOKS, Appellant, v. UNITED STATES of America, Appellee.
    No. 74-1003.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 14, 1974.
    Decided July 8, 1974.
    Loren L. Brooks, filed appellant’s briefs pro se.
    W. H. Dillahunty, U. S. Atty., and Walter G. Riddick, Asst. U. S. Atty., Little Rock, Ark., filed appellee’s typewritten briefs.
    Before LAY, HEANEY and ROSS, Circuit Judges.
   HEANEY, Circuit Judge.

Loren Lee Brooks, an inmate of the United States Penitentiary at Atlanta, Georgia, appeals from the District Court’s disposition of his petitions for post-conviction relief with respect to four past convictions in the United States District Court for the Eastern District of Arkansas.

On October 30, 1970, Brooks pled guilty to two felony charges: (1) an information charging him with entering the First National Bank of Prescott, Iowa, with intent to commit larceny in violation of 18 U.S.C. § 2113(a); and (2) an indictment charging the unlawful possession of rare currency with a value in excess of $100.00 taken in the bank larceny in violation of 18 U.S.C. § 2113(c). He is currently incarcerated pursuant to the sentence imposed with respect to the unlawful possession plea.

Brooks alleged in two petitions for writs of error coram nobis that his constitutional rights to counsel and due process were denied in guilty plea proceedings before the District Court in 1944 and 1949. He filed a third petition asking for post-conviction relief from the sentences imposed pursuant to his 1970 guilty pleas under 28 U.S.C. § 2255. He alleged that the court had acted illegally by allowing him to plead guilty to both entering the bank with intent to commit larceny and unlawful possession, and by considering invalid previous convictions in giving him two ten-year sentences to be served concurrently. He also alleged that the sentencing court erred by considering a felony charge that was pending against him in pronouncing the sentences on the 1970 pleas.

The District Court heard the three petitions together in a consolidated hearing. It held that all the guilty pleas were made voluntarily, knowingly and intelligently. It ruled that the 1944 and 1949 guilty pleas were valid and that, therefore, it was appropriate to consider them in sentencing Brooks pursuant to his 1970 guilty pleas. However, it did hold that under the teachings of Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959), it was improper to have sentenced Brooks for both entering with intent to commit larceny and unlawful possession charges. Accordingly, the court set aside the judgment and sentence on the entering with intent to commit larceny charge and upheld the judgment and sentence of ten years on the unlawful possession charge. The court did not rule on the propriety of its consideration of the pending felony charge in sentencing the petitioner.

On appeal, Brooks, with two exceptions, has substantially reiterated the claims he raised in the District Court. We have reviewed the record and are satisfied that the District Court correctly decided these claims in its well reasoned unpublished memorandum opinion. We are also satisfied that the sentencing court did not commit reversible error by taking into consideration the pending felony charge when it sentenced Brooks in 1970. The charge was for unlawful possession of a firearm. Both the government and Brooks' counsel agreed that the court should consider it in pronouncing the sentences. The government agreed to dismiss the charge at the sentencing. In addition, Brooks’ counsel explained the mitigating circumstances surrounding the charge to the court.

The first new issue raised here is whether the District Court improperly required Brooks, rather than the government, to prove that the 1944 and 1949 guilty pleas were entered in violation of the Sixth Amendment. This Court directly addressed this issue in Losieau v. Sigler, 406 F.2d 795, 802-803 (8th Cir.), cert. denied, 396 U.S. 988, 90 S.Ct. 475, 24 L.Ed.2d 452 (1969) :

Ordinarily, the burden of proof is on an accused to establish that he was denied the right to counsel. * * *
■* * * * * * * * * [W]here the record is silent as to whether an accused was furnished counsel at a critical stage and where the accused introduced evidence tending to show that he was not in fact so represented, the burden then shifts to the state to prove, by a fair preponderance of the evidence, that the accused was represented. * * *

See also, Mitchell v. United States, 482 F.2d 289, 295-296 (5th Cir. 1973).

It appears from the District Court’s decision that it placed the burden of proof on Brooks. We do not feel this was improper under the circumstances. The 1949 “Judgment and Commitment” form reveals that Brooks was represented by counsel when he pled guilty in 1949. The form relating to the 1944 plea states that Brooks “having been asked whether he desire[d] counsel appointed by the court replied that he did not.” Thus, as to the 1949 plea, it is clear that the burden of proof should have been placed on Brooks. After reviewing the record before the District Court, we are also convinced that the court did not err by concluding that the 1944 plea was valid. We are satisfied on this record that .the entry on the 1944 Judgment and Commitment form is sufficient to maintain the presumption that the waiver of counsel was intentional and intelligent. Unlike the facts in Craig v. Beto, 458 F.2d 1131, 1135-1136 (5th Cir. 1972), the record here indicates not only that the petitioner was advised he could have counsel, but also that counsel would be appointed for him. Moreover, the only evidence that the petitioner s waiver of counsel in 1944 was not intentional and intelligent is the petitioner’s uncorroborated testimony below, nearly thirty years later. The District Court found that Brooks’ credibility was questionable, and on this record, we cannot say this was error.

' Finally, Brooks contends here for the first time that his judgment and sentence of ten years for unlawful possession of the currency taken in the bank larceny should be set aside. He argues that because the face value of the currency described in the indictment totaled less than $100.00, it was improper under 18 U.S.C. § 2113(b) & (c) to have sentenced him to more than one year in prison. Inasmuch as this issue has not been properly raised in the District Court, it will not be considered in this Court for the first time. See McKlemurry v. United States, 478 F.2d 1185, 1188 (5th Cir. 1973).

Affirmed.

      . The alleged invalid previous convictions were the 1944 and 1949 guilty pleas that were challenged in the two petitions for writs of error coram nobis.

      . Chief Judge J. Smith Henley presided over the hearing on the petitions below. He also was the presiding judge when the guilty pleas were entered in 1970.

      . Brooks also recently notified the District Court of this contention in a letter of June 10, 1974. The District Court, however, has not decided the question, but has instead advised Brooks of his right to file a formal petition in that court.


source: Caselaw Access Project

author: DUNIWAY, Circuit Judge:

license: Public Domain

text:
    Clarence WILLIAMS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-1836.
    United States Court of Appeals, Ninth Circuit.
    June 21, 1974.

      Clarence Williams in pro. per.
    William C. Smitherman, U. S. Atty., James P. Loss, Asst. U. S. Atty., Phoenix, Ariz., for respondent-appellee.
    Before DUNIWAY and ELY, Circuit Judges, and CRARY, District Judge.

       The Honorable E. Avery Orary, United States District Judge for the Central District of California, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

In March of 1969, Williams was convicted under two separate counts of selling and facilitating the sale of heroin in violation of 21 U.S.C. § 174. The conviction was affirmed by us on March 24, 1970, United States v. Williams, 9 Cir., 1970, 423 F.2d 696. On February 14, 1973, Williams challenged his conviction by a petition filed under 28 U.S.C. § 2255 which the district court denied without a hearing. Williams appeals and we reverse.

Proceeding pro se, Williams raises a number of claims of error, all of which pertain to the government's use at his trial of the testimony of narcotics agent Henry J. Watson. Williams points out that after his conviction, in November of 1969, Watson pleaded guilty along with a number of other narcotics agents to count twelve of a twelve count indictment charging (among other things) perjury, and conspiracy to deprive one Romero of his civil rights. United States v. Mendelsohn, C.D.Cal., 1969, Crim. #4337. See United States v. Chisum, 9 Cir., 1971, 436 F.2d 645, 647-648. Watson’s guilty plea in Mendelsohn raises serious questions about the degree to which Williams’ conviction is tainted by the use of Watson’s testimony.

In Mesarosh v. United States, 1956, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 the Supreme Court reversed convictions because they were tainted by the testimony of a paid informer of the government who was later accused by the government of perjury in other cases. In United States v. Chisum, swpra, this court applied the Mesarosh principle to a case in which another of the defendants in Mendelsohn had testified. We held there that the revelation subsequent to Chisum’s trial of Agent Saiz’s illegal behavior tainted Chisum’s conviction, and we reversed the conviction for a new trial. See also United States v. Miramon, 9 Cir., 1971, 443 F.2d 361; United States v. Davis, 10 Cir., 1971, 442 F.2d 72, 74. Once again we are faced with a case in which, as in Chis-um, Miramon and Davis, one of the defendants in Mendelsohn testified. It is therefore necessary for us to consider carefully the role that Watson’s testimony played at Williams’ trial.

Williams’ indictment and trial resulted from two separate but almost identical sets of circumstances occurring on February 24-25, 1967 and March 9, 1967. The government presented four witnesses to support its ease and the defense rested without presenting any evidence.

The government’s chief witness was undercover narcotics agent Jackson who testified that he had made the original contact with Williams by calling him in Phoenix by telephone from Los Angeles. Jackson said that he met with Williams and arranged the details of the purchase of one ounce of heroin. A number of hours later Williams’ co-defendant, Nero, came to Jackson’s motel room and the money and heroin were exchanged in conformity with the Williams-Jackson deal.

Jackson also told the jury the details of the second purchase (this time of two ounces of heroin) which similarly involved a preliminary meeting with Williams to set up the deal and a later visit by Nero to consummate the transaction. Jackson positively identified Williams as the man with whom he had arranged the heroin purchases. Through Jackson the government introduced in evidence the heroin that was purchased on both occasions.

Agent Watson was the government’s third witness. He testified that he picked Jackson up at the Phoenix airport on February 24 and again on March 9 and took Jackson to his motel just before both sales. Watson testified that on both occasions he maintained surveillance of Jackson’s motel room and that he saw Williams enter and leave the room on the first occasion and pick Jackson up on the second. He positively identified Williams as the man he saw. Watson also testified that he saw Williams and Nero together after both of the Williams-Jackson meetings but just before Nero completed the sales to Jackson.

Watson’s testimony thus served to corroborate Jackson’s testimony in important respects. It placed Williams and Nero at the motels at the times that Jackson had testified that he had met with the defendants.

The government’s fourth witness was Phoenix police officer Young. His testimony only related to the second purchase and only revealed that Young had followed Williams to a place near Jackson’s motel on March 9 where he saw Williams meet Nero. Young positively identified Nero and Williams and he placed them together just after Nero had sold the heroin to Jackson.

Because the defendants presented no evidence, their chief defense tactic was to try to impeach the identification of Nero as Williams’ partner and generally to impeach the testimony of Young and Watson. After the first purchase, agents Jackson and Watson had identified Williams’ partner as being one Levi Haymes. Both defense attorneys extensively cross-examined all three police officers concerning this misidentification. The chief evidence used to impeach Watson and Young was a discrepancy between the testimony of Young and Watson’s written report. This discrepancy involved the details of Williams’ rendezvous with Nero after the second sale.

In evaluating the significance of Watson’s testimony, we are guided by the standards established by the Supreme Court in Mesarosh v. United States, supra. In Mesarosh the Court reversed with directions to grant a new trial because it determined that the allegedly perjured testimony was so material that it could not “be determined conclusively by any court that [the] testimony was insignificant in the general case against the defendants.” 352 U.S. at 10-11, 77 S.Ct. at 6. That observation is equally applicable here. Watson was an important witness in the government’s case against Williams. He provided the only corroboration of Jackson’s testimony that Williams was involved in the first transaction. Without his testimony the jury might not have been convinced that there was enough evidence to find Williams guilty beyond a reasonable doubt. "Only the jury can determine what it would do on a different body of evidence, and the jury can no longer act in this ease.” Mesarosh v. United States, supra, 352 U.S. at 12, 77 S.Ct. at 7.

A conviction based substantially upon tainted evidence cannot stand. Mesarosh v. United States, supra, 352 U.S. at 14, 77 S.Ct. 1. Watson was the government’s agent. He was charged by the government with perjury and convicted of an act perpetrated in an investigation similar in nature and contemporaneous in time to the investigation of Williams. The government itself prosecuted Watson and thereby impugned his integrity and credibility. Williams is entitled to a new trial. United States v. Davis, 10 Cir., 1973, 473 F.2d 1023, 1025.

The order appealed from is reversed and the case is remanded to the district court for further proceedings consistent with this opinion.

      . The government’s second witness was a telephone company employee who testified briefly concerning some telephone company records.


author: ELY, Circuit Judge:

text:
    KERRY INVESTMENT COMPANY, a Washington corporation, Petitioner-Appellant-Cross-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee-Cross-Appellant.
    Nos. 73-1084, 73-1137.
    United States Court of Appeals, Ninth Circuit.
    June 6, 1974.

      Meyer Rothwacks, Richard W. Perkins, Stephen Schwarz, Scott P. Cramp-ton, Asst. Atty. Gen., Tax Div., U. S. Dept, of Justice, Washington, D. C., for petitioner-appellant-cross-appellee.
    James W. Johnston of Graham, Mc-Cord, Dunn, Moen, Johnston & Rosen-quist, Seattle, Wash., for respondent-ap-pellee-cross-appellant.
    Before ELY and GOODWIN, Circuit Judges, and WILLIAMS, District Judge.

      Honorable David W. Williams, United States District Judge, Los Angeles, California, sitting by designation.

   OPINION

ELY, Circuit Judge:

The taxpayer made interest-free loans totaling over $500,000 to a subsidiary corporation wholly owned by the taxpayer. The Commissioner, acting pursuant to section 482 of the Internal Revenue Code of 1954 (26 U.S.C. § 482) and certain Treasury Regulations adopted thereunder (26 C.F.R. §§ 1.482-1 and 1.-482-2), allocated interest income to the taxpayer for the years in question, 1966 and 1967. Except as to one loan in the amount of $8,250, the Tax Court sustained the Commissioner’s allocations. The excepting of that loan was based upon the Tax Court’s conclusion that the taxpayer had met its burden of proving that that particular loan had not resulted in the production of gross income to the subsidiary. Judge Featherston, dissenting, would have sustained the allocation in its entirety. Under his reasoning, the Treasury Regulations authorize the allocation in cases such as this irre-spect! ve of whether borrowed money can be traced as producing gross income realized by the borrower. Both the taxpayer and the Commissioner have appealed. The Tax Court’s opinion is reported at 58 T.C. 479 (1972).

The taxpayer vigorously argues that section 482, properly construed, does not authorize the adoption of the regulations under which the Commissioner’s allocations were made. We disagree. The provisions of section 482 are broad in their scope and, most assuredly, have sufficient breadth to cover the two Treasury Regulations that the taxpayer attacks. Our own court has so held, at least by implication. Oil Base, Inc. v. Commissioner, 362 F.2d 212 (9th Cir.), cert. denied, 385 U.S. 928, 87 S.Ct. 287, 17 L.Ed.2d 211 (1966), wherein the Regulations are quoted in a footnote. Accord, B. Forman Co. v. Commissioner, 453 F.2d 1144 (2d Cir.), cert. denied, 407 U.S. 934, 92 S.Ct. 2458, 32 L.Ed.2d 817, rehearing denied, 409 U.S. 899, 93 S.Ct. 102, 34 L.Ed.2d 158 (1972); Kahler Corp. v. Commissioner, 486 F.2d 1 (8th Cir. 1973). Thus, we reject the contentions of the taxpayer and, as to it, affirm the Tax Court’s judgment.

Turning to the cross-appeal, we have concluded that the approach taken by Judge Featherston is more logical than that taken by the majority in the Tax Court’s opinion. Any scheme which permits related entities to regulate their tax obligations by transfer and retransfer of monies between themselves should be carefully scrutinized. When a taxpayer lends $500,000 to a wholly owned subsidiary without interest, it is obvious that the lender is likely divesting itself of interest income that it could have earned by making interest-bearing loans in a competitive market. When such an interest-free loan is made, we see no reason why an allocation of some income on the loan should not be made to the taxpayer even if the interest-free loan did not result in the production of gross income. In short, we hold that tracing in order to determine whether the borrowed funds generated gross income to the borrower is neither necessary nor required. The Eighth Circuit has reasoned to the same effect. Kahler Corp. v. Commissioner, 486 F.2d 1 (8th Cir. 1973). In that case, Circuit Judge Ross succinctly set forth the conclusion with which we now agree. He wrote:

“The proper standard to be applied in cases such as this is whether or not the loans from the taxpayer to other members of a controlled group would have been made on an interest free basis in arm’s length dealings between uncontrolled taxpayers. Whether the Commissioner shows that the borrowed funds actually produced income for the borrowing corporation is of no importance.7 Money, and the use of money, is an essential element in the .profit making activities of most corporations, just as raw material is a necessary component in the manufacture of salable goods.” Id. at 5.

Judge Ross’s footnote 7 is a recitation of significant legislative history and reads:

“We find no support in the legislative history of Section 482 for the claim that transactions between controlled corporations must be traced to the production of gross income. The express purpose of that statute is the prevention of tax evasion (by the shifting of profits, the making of fictitious sales, and other methods frequently adopted for the purposes of milking). H.R.Rep.No.2, 70th Cong., 1st Sess.; S.Rep.No.960, 70th Cong., 1st Sess.” Id. at 5 n.7.

The Eighth Circuit’s opinion, as well as ours, appears to harmonize with that of the Second Circuit in B. Forman Co. v. Commissioner, supra. Thus, the only three Courts of Appeals to which the precise question has been presented have reached the same conclusion. If the Commissioner accedes to these holdings, much waste of his investigative resources should, we think, be avoided.

The Tax Court’s judgment, insofar as it rejected the Commissioner’s allocation of income related to the loan of $8,250 is reversed.

Affirmed in part; reversed in part.

      . The allocation made by the Commissioner was most assuredly reasonable, and the taxpayer makes no contention to the contrary. Quoting from the Commissioner’s brief: “The allocation was determined by computing simple interest on the outstanding indebtedness at the end of each year at an arm’s-length rate of five percent per annum if

        . The taxpayer also argues that the Commissioner abused his discretion in applying the pertinent Regulations retroactively. This argument is without merit. 26 U.S.C. § 7805(b) ; Kahler Corp. v. Commissioner, supra, at 5.

      . The tracing concept has also been criticized by responsible commentators in the field of tax law. See, e. g., Bittker and Eustice, Federal Income Taxation of Corporations and Shareholders, 1f 15.06 (3d ed: 1971) ; Holtzmuller, Interest-Free Loans and Section 482 — Creation of Income ?, 9 Wm. & Mary L.Rev. 509 (1967) ; Hewitt, Section 482 — Reallocation of Income and Deductions Between Related Persons — Up to Date, 22 N.Y.U.Inst. on Fed.Tax. 381, 398-400 (1964) ; Nauheim, B. Forman & Co., Inc.— A Crucial Test of the Future of Section 482, 26 Tax Lawyer 107, 119-122 (1972).


author: BARNES, Circuit Judge.

text:
    KODEKEY ELECTRONICS, INC., a corporation, Plaintiff-Appellee, v. The MECHANEX CORPORATION, a corporation, and Tenneco, Inc., a corporation, Defendants-Appellants.
    No. 74-1069.
    United States Court of Appeals, Tenth Circuit.
    July 9, 1974.

      Hindry & Meyer, Charles F. Brega, Denver, Colo., for appellee.
    Harry L. Hobson, Denver, Colo., for appellants.
    Before BREITENSTEIN, BARNES, and BARRETT, Circuit Judges.

       I Ionorable Stanley X. Barnes of the Xintli Circuit, sitting by designation.

   BARNES, Circuit Judge.

This is the second appeal to this Court filed by the same appellants. The first appeal, heard before this same panel, resulted in an affirmance of the district court’s judgment in its entirety. Kodek-ey Electronics v. Mechanex Corp. et al., 486 F.2d 449 (10th Cir. 1973).

The original judgment of the district court was dated June 2, 1972, and provided for a fixed two-years of injunctive relief against appellants, as well as monetary damages. This injunctive relief was to give effect to a two year covenant not to compete after termination of the contract, as previously agreed upon by the parties. See 486 F.2d at 452 n. 2 (opinion of October 11, 1973).

During the pendency of the previous appeal, the district court’s order granting injunctive relief was repeatedly stayed by the district court until the mandate of this Court was issued, and meanwhile stated it retained jurisdiction.

We quote from the appellants’ present brief, portions describing the actions of the district court.

There are but two issues on this appeal: One: Did the district court have plenary equitable power to modify its judgment for injunctive relief after our affirmance of that judgment in all respects, and our mandate had issued ? Two: Did the district court action violate Federal Rules of Civil Procedure 60(b)(5)?

Our answer to the first question raised is “yes”, and to the second “no”.

We first order that this case be submitted on the briefs on file and without oral argument.

The two year injunction originally ordered by the district court, while stayed pending appeal, was upheld by us in the first appeal.

Thereafter, Kodekey filed a motion in the district court to modify the injunction after affirmance, but before remand ; and an amended motion after remand, on November 20, 1973. On December 12, 1973, oral argument was heard in the district court on this motion, and the district court stated it intended to enjoin defendants from “manufacturing, selling, agreeing to sell, or offering to sell its electronic speedometers and tachometers for a period of two years from the date that the judgment in this case became final.” (R.T.at 87)

An order to that effect was entered in the district court on January 4, 1974, modifying and clarifying the injunctive portion of the June 2, 1972, order. This was not a correction of an error or mistake, but a clarification to establish the original intention of the trial judge— that the original agreement made between the parties should govern the relief.

This means to us that the two year period should begin to run from the date our mandate rendered the district court judgment final.

In our opinion, the extension was an appropriate exercise by the district court of its plenary powers, is consonant with equity, and is consistent with our opinion. If the extension were not granted, Kodekey would in effect be deprived of the benefit of the non-competition agreement because of the stays sought by appellants and granted to postpone the effect of the original injunction.

Nor do we see any Rule 60 problem. We are not concerned with a clerical mistake covered by Rule 60(a). Rule 60(b)(5) allows modification relief to appellee if it is no longer equitable that the judgment have prospective application; and 60(b)(6) is even broader, granting to either party relief “[for] any other reason, justifying relief from the operation of the judgment.” See Preveden v. Hahn, 36 F.Supp. 952 (S.D.N.Y.1941); 3 Moore’s Federal Practice, § 60.01, et seq. No application under Rule 60(b) was necessary (1) because the provisions specifically do not apply to an “independent action for relief”, and more importantly (2) because the district court here acted within its inherent power to do equity. The action so taken does not conflict with- our decision; it supports it. See Federal Rules of Civil Procedure, Rule 62(g).

If the district court acted or should have acted under Rule 60(b), we hold Wilkin v. Sunbeam Corp., 405 F.2d 165 (10th Cir. 1968) eliminated the necessity of obtaining prior permission from the court of appeals. While the Wilkin opinion was based on different acts, we do not think that is distinguishing. Just as in Wilkin the trial court was in a better position to pass upon the fraud claim, the district court in our case is in a better position to determine whether equity requires the extension of the injunction, particularly after its stay below was sought by appellants herein on one or more occasions. King-Seeley Thermos Co. v. Aladdin Industries, Inc., 418 F.2d 31, 35 (2d Cir. 1969); United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932); Ridley v. Phillips Petroleum Co., 427 F.2d 19 (10th Cir. 1970) (and cases cited, p. 23); City and County of Denver v. Denver Tramway Corp., 187 F.2d 410 (10th Cir. 1951); Moore and Rogers, Federal Relief from Civil Judgments, 55 Yale L. J. 623, 643 (1946).

As Justice Cardozo stated in United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932):

“We are not doubtful of the power of a court of equity to modify an injunction in adaptation to changed conditions, though it was entered by consent .... Power to modify the decree was reserved by its very terms, and so from the beginning went hand in hand with its restraints. If the reservation had been omitted, power there still would be by force of principles inherent in the jurisdiction of the chancery. A continuing decree of injunction directed to events to come is subject always to adaptation, as events may shape the need The distinction is between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative .... The result is all one whether the decree has been entered after litigation or by consent. ... In either event, a court does not abdicate its power to revoke or modify its mandate if satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong.”

We note that some of the eases relied upon by appellants Mechanex and Tenne-co are those where the district court, after an appeal, modifies its original opinion in a manner contrary to the result ordered by the court of appeals. This did not occur here. See: Gulf Coast, etc. v. International Brotherhood of Electrical Workers, etc., 460 F.2d 105 (5th Cir. 1972); Butcher & Sherrerd v. Welsh, 206 F.2d 259 (3rd Cir. 1953).

Affirmed.

      . “By its Order of January 5, 1973, modifying the Order of June 2, 1973, the district court awarded damages in the amount of $124,320 to Kodekey for the lost profits for the period March, 1970 to June 2, 1972, and awarded further damages in the amount of $77,448 to Kodekey for loss of future profits for the period June 2, 1972, to June 2, 1973. In the January 5, 1973 Order, the court made reference to the continued manufacture and sale of speedometers by Mechanex subsequent to the Order of June 2, 1972, pursuant to the continuous stays of execution of the injunction: ‘Mechanex has continued to manufacture and sell its units since the entry of the Court Order of June 2, 1972, and has steadily benefitted therefrom.’ . . . The district court did not modify the injunctive relief, although it did specifically restate its purported retention of jurisdiction with respect to an award of additional damages in view of the continued manufacturing and sales activities of Mecha-nex
      “By its Order dated January 30, 1973, the district court again expressly purported to retain jurisdiction as to the additional damages, if any, accruing to Kodekey pending the final disposition of this case. And again, the court did not modify the injunction or express any intention of modifying the injunction . . . ”
      Mechanex brought an appeal to this Court on several issues.
      “During the pendency of that appeal, the district court granted successive stays of the injunctive relief. On October 11, 1973, this Court affirmed the judgment of the district court in all respects. On November 8, 1973, the mandate of this Court issued, affirming the award of damages and the specific terms of the injunctive relief granted by the district court. Immediately upon issuance of the mandate, Mechanex ceased all manufacture and sale of the speedometer in question, and has not resumed such activities. Thereafter, Mechanex satisfied the judgment for money damages in the amount of $213,610.
      “On November 20, 1973, Kodekey filed its Amended Motion to Modify Injunction and its Brief in support thereof, allegedly pursuant to Federal Rule of Civil Procedure 60(b) (5). The motion requested that the period of injunctive relief which was to expire on June 1, 1974, be extended so as to expire two years from the time of the issuance of the mandate of this Court. On December 12, 1973, oral argument was heard on the amended Motion in the district court and the court ruled in favor of Kodekey’s Motion on the same date. On January 4, 1974, the district court entered an Order modifying and amending its Order of June 2, 1972.”


author: HAYS, Circuit Judge:

text:
    John T. ROHE, Petitioner-Appellant, v. Robert T. FROEHLKE, Secretary of the Army, and Commanding General, First United States Army, Respondent-Appellee.
    No. 893, Docket 74-1002.
    United States Court of Appeals, Second Circuit.
    Argued April 24, 1974.
    Decided July 3, 1974.

      Steven J. Hyman, New York City (Kunstler, Kunstler, Hyman & Goldberg, New York City, on the brief), for petitioner-appellant.
    Thomas A. Illmensee, Asst. U. S. Atty. (Edward John Boyd, V, U. S. Atty. for the E. D. N. Y., and Paul B. Bergman, Asst. U. S. Atty., on the brief), for respondent-appellee.
    Before LUMBARD and HAYS, Circuit Judges, and JAMESON, District Judge.

       Honorable William J. Jameson, Senior District Judge for the District of Montana, sitting by designation.

   HAYS, Circuit Judge:

Appellant Rohe brought this action for injunction and other relief claiming that the procedure by which he was ordered to active duty as an unsatisfactory reservist was improper because in appealing the order under Army Regulation 135-91, jf 20, he was not informed of or permitted to answer adverse factual allegations placed in his file. The district court held that the regulation did not require the Army to show the comments to appellant. The court denied Rohe’s request for injunctive relief and granted the government’s motion for summary judgment. 368 F.Supp. 114 (E.D.N.Y.1973). We reverse.

I.

On June 26, 1971, appellant, a member of the United States Army National Guard, failed to report as ordered to annual summer training. He had notified his unit of his illness, but was told that he would have to report to summer camp and be examined by a military doctor there. Appellant claims that he was on sick report on June 26 in his regular job as a New York City policeman and that under departmental regulations he was forbidden to leave home. Appellant later submitted a memorandum from a police surgeon stating that appellant was ill and confined to home on June 26 and 27.

After the unit returned from summer camp Rohe met with Major Curran, the Assistant Inspector General, who subsequently recommended to the unit commander that Rohe be permitted to attend summer camp with another unit rather than being ordered to active duty. The unit commander rejected this recommendation and on September 15, 1971, Rohe was officially notified that active duty orders would be issued for him in about 30 days and that if he so desired he could appeal the decision within 15 days.

On September 22 Rohe filed his appeal. On September 28 Rohe was notified that his appeal had been received and would be forwarded to the unit commander for comments and recommendations and that upon receipt thereof “this office will advise you concerning the status of your appeal.” The unit commander recommended denial of the appeal. On October 21, 1971, the Assistant Adjutant General directed the unit commander to “respond to [Rohe’s] allegations on a point by point basis.” On October 28 the unit commander responded, reiterating his disapproval of the appeal and stating reasons for his view.

On November 3 the Assistant Adjutant General returned the matter to the unit commander again for clarification and explanation of the allegations that Rohe had not talked to the police surgeon but to a policeman from the medical unit and that he had been returned to duty by the police surgeon on the morning of June 27.

On December 1, 1971, the Assistant Adjutant General once more returned the matter to the unit commander. He requested signed statements from the police surgeon and the sergeant of the police medical unit concerning the facts of Rohe’s illness. He also requested an explanation from the unit commander concerning Rohe’s history of illness, which had caused the unit commander to excuse Rohe from 19 drills in the six months preceding summer camp. On January 15, 1972, the unit commander replied to these requests. He also included statements by the battalion surgeon and the unit’s first sergeant. Both statements claimed that, on questioning, Rohe admitted that he was not on sick leave but on vacation and that when asked to produce the letter from the police surgeon concerning a purported examination scheduled for June 28 he flushed the letter down the toilet.

On March 21, 1972, the convening authority, with one member dissenting, approved the recommendation that appellant be ordered to active duty.

Rohe claims, and the government does not deny, that after the letter of September 28 he never received notice of the Assistant Adjutant General’s requests for further materials or of the responses of the unit commander. Rohe specifically denies several of the factual allegations contained in these materials. The repeated requests by the Assistant Adjutant General for these materials show, he contends, that the materials were crucial to the denial of his appeal. He feels there might have been a different result if he had had any opportunity to rebut them.

II.

Army Regulation 135-91, j[ 20, *****8 provides for appeals of involuntary orders of reservists to active duty. The regulation does not explicitly require that the appellant be informed of adverse allegations placed in his record. Rohe argues that such a right is necessary to enable him to “explain those facts pertinent to his case” and to make the appeal meaningful.

Even in military law, where the scope of due process is not so great as in other areas of the law, the right to file an appeal and to make a statement

“includes the right to file a meaningful statement, one based on all the facts in the file and made with awareness of the recommendations and arg-ments to be countered.” Gonzales v. United States, 348 U.S. 407, 415, 75 S.Ct. 409, 414, 99 L.Ed. 467 (1955).

In Gonzales the Court found this right “implicit in the Act and Regulations— viewed against our underlying concepts of procedural regularity and basic fair play.” Id. at 412, 75 S.Ct. at 412. See also United States v. Purvis, 403 F.2d 555, 562 (2d Cir. 1968); Crotty v. Kelly, 443 F.2d 214 (1st Cir. 1971).

The government argues that Gonzales does not apply here because it involved an application for conscientious objector status. Although the scope of due process may be different in conscientious objector cases, nothing cited by the government carries the distinction so far as to deny a reservist the right to respond to adverse allegations in an appeal under A.R. 135-91, ff 20.

The government also argues that, even if appellant had a right to notice of the adverse statements, denial of that right was harmless because appellant already knew that the recommendations of his unit commander would be unfavorable and because the statements were of little importance. Although appellant might have anticipated that the unit commander would recommend denial of his appeal, he could not anticipate that the unit commander would also submit statements containing damaging factual allegations from other persons in the unit and the police department. That the Assistant Adjutant General requested the materials seems itself to verify their importance to the determination of Rohe’s appeal. The district court apparently took the view that Rohe’s claims were not important because it was undisputed that he was fit to report to summer camp on June 27 but failed to do so. Even if this is true, Rohe’s claims might be relevant to whether two years of active duty or two weeks of summer camp with another unit was the more appropriate disposition of his case. In any event, the significance of Rohe’s claims should be decided through the military appeals process and not by the federal courts.

We therefore reverse and remand with directions to enter an order enjoining respondents from ordering appellant to involuntary active duty until his appeal has been determined in accordance with this opinion.

      . The government argues that appellant would have been permitted to see the materials but that he simply never requested permission. However, the affidavit submitted by the government makes clear that permission would have been granted only “on the condition that he described the documents that he desired.” Rohe could not ask to see documents he was not aware of, and therefore this opportunity hardly enabled him to respond to the adverse allegations.

      . The regulation reads in pertinent part:
      “20. Appeals, a. General. An individual who has been denied a requested discharge or delay in order to active duty may appeal such denial. The appeal will be submitted within 15 days of the member’s receipt of a denial; it will explain those facts pertinent to his case which he feels were not fully considered, and may include any additional appropriate evidence which the applicant may wish to present.
      “b. Sow submitted. Requests for appeals will be submitted through the unit commander to the commander having authority to approve discharges or delays as prescribed in paragraphs 16a and 19a as ap-, propriate.
      “c. Authority to act on appeals. The approving authority may act on such appeals when the decisions are favorable to the individual concerned. When denial of an appeal is indicated, however, he will forward the request and pertinent records, together with his recommendations, to Headquarters, Department of the Army for final determination as follows:
      (2) Denial of appeal for delay.

        (b) Area commanders and CG, US A AC, will forward denial of appeals for delay to the Commanding Officer, U. S. Army Reserve Components Personnel Center, Fort Benjamin Harrison. IN 46249 for processing under AR 601-25.
      “d. Appeal of involuntary order to active duty. If an individual appeals liis involuntary order to active duty for reasons other than those specified in this regulation, the denial of such appeal will be forwarded to CO, USARCPC in accordance with c(2) (a), or (b) above as appropriate. The member’s DA Form 201 (Military Personnel Records Jacket, U. S. Army) will be forwarded in all appeal cases.
      “e. Appeal board. The Commanding Officer, U. S. Army Reserve Components Personnel Center, will convene an appeal board to determine findings and submit recommendations to him on denials of appeal of involuntary order to active duty submitted under this regulation. The board proceedings will be as prescribed by the Commanding Officer, U. S. Army Reserve Components Personnel Center. The provisions of AR 15-6 will not be applicable to such proceedings.”
      A.R. 15-6 provides in part that the “individual who is the subject of the investigation will be provided an opportunity to review all relevant material in the file” and be “permitted to rebut any adverse evidence.”

      . Appellant does not claim, and we do not hold, that the regulation violates due process. We merely hold, as did the Supreme Court in Gomales, that the right to respond to adverse allegations is implicit in a regulation granting a right to appeal.

      . The cases on which the government relies are inapposite. In Nurnberg v. Froehlke, 489 F.2d 843, 848 (2d Cir. 1973), we found that the report which petitioner had not been shown contained no point which he did not already know. Here the statements added much which appellant did not know was in the record.

      . The district court relied heavily on the provision in A.R. 135-91 that the requirement of A.R. 15-6 to provide an “opportunity to review all relevant material in the file” will not be applicable (note 2). Here, however, the material to which petitioner claims he was entitled was in the nature of additional charges and factual allegations which he should have been given an opportunity to answer.


author: DUNIWAY, Circuit Judge: MORELL E. SHARP,

text:
    John Dean WALLACE, Jr., Appellant, v. James SCHLESINGER, as Secretary of Defense, et al., Appellees.
    No. 73-3316.
    United States Court of Appeals, Ninth Circuit.
    June 21, 1974.
    David Nawi (argued), of Treuhaft, Walker & Nawi, Oakland, Cal., for appellant.
    Howard A. Allen, Asst. U. S. Atty. (argued), San Diego, Cal., for appellee.
    Before DUNIWAY and TRASK, Circuit Judges, and SHARP, District Judge.

       The Honorable Morell E. Sharp, United States District Judge for the Western District of Washington, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

This is an action in habeas corpus seeking the release of the appellant, John Dean Wallace, Jr., from the United States Navy on the basis that he has been improperly denied discharge as a conscientious objector under the applicable Navy regulations. Appeal tq this court followed denial of relief by the district court.

Wallace is a dental officer in the Navy. He joined the Naval Reserve in 1963 while a college student and received his commission upon graduation. In April, 1972, several months before completing his internship, he received orders to report for duty on the USS KITTY HAWK in the Gulf of Tonkin in the summer of 1972. On April 24, 1972, he submitted a letter to Rear Admiral E. C. Raffetto, Chief Dental Division, requesting a non-combat assignment on the basis of his opposition to the Vietnam War. The Admiral denied the request on May 17, 1972, stating that Wallace’s reasoning was untenable and that he should either serve as ordered or seek to resign his commission on the basis of conscientious objection. Wallace took no action at that time. He reported for active service on July 1, 1972, and served on the USS KITTY HAWK in the Gulf of Tonkin. In early 1973, shortly after his return, he applied to resign his commission on the basis of conscientious objection. While that application was still pending and before it was denied, he applied for a discharge on the same basis under the applicable Navy regulations.

The Navy followed its usual procedure in processing appellant’s application for discharge. He was interviewed by a chaplain, who found him sincere and recommended discharge. The interviewing psychiatrist found “no psychiatric contraindication to this man making C. O. application.” The hearing officer recommended denial of the application. The pertinent paragraph from the hearing officer reads as follows:

“It is the opinion of the investigating officer that LT. WALLACE’S convictions are of insufficient strength to qualify him as a conscientious objector. He is apparently able to compromise beliefs when convenient to attain another goal. A truly sincere conscientious objector would have refused a commission in 1971, applied for CO status immediately in April 1972, when assigned to a ship directly involved in the conflict present then, or would have applied for CO status instead of requesting acceptance of his resignation in April 1972. In depth study of the chronology of his military duty indicates at least three different times, at least a year apart, where he could have made known his strong convictions and objections to war in any form. The statement contributed by Mrs. WALLACE indicated that LT. WALLACE made a decision last year while in the Gulf of Tonkin to become a conscientious objector yet he waited until April 1973 to make an application. It would appear that a bona fide CO would find such delays unacceptable to his moral well being.”

This was a recommendation, not a decision, and was no more binding on the deciding authority than other recommendations placed in Wallace’s file as it wended its way to the deciding authority.

The final administrative action was by the Assistant Chief for Military Personnel Security and Performance (the Assistant Chief), acting for the Chief of Naval Personnel. The pertinent paragraph of the Assistant Chief’s letter reads:

“Your application has been afforded careful and complete review. On the basis of this review it is apparent that prior to entry into the Navy you were opposed to ‘our war effort’ and to ‘senseless killing.’ While your concerns and reservations may now be stronger there is nothing to indicate that your present beliefs are in substance and foundation any different than those you held before you accepted your commission. While the Chief of Naval Personnel recognizes your sincere desire for discharge your application and the attendant correspondence is not considered supportive of your request for classification as a conscientious objector.”

There is no finding that Wallace was insincere. The Assistant Chief’s finding relates to the regulation, 32 C.F.R. § 730.18(b), which provides that a request for discharge based solely on conscientious objection which existed but was not claimed prior to entry into the Navy and which would have sufficed to keep the person out of military service will not qualify as a basis for discharging an in-service conscientious objector.

There is no basis in fact in the record for the Assistant Chief’s finding. Under these circumstances, reversal is required. Under our decisions in Tellez v. Chaffee, 9 Cir., 1972, 467 F.2d 218, Christensen v. Franklin, 9 Cir., 1972, 456 F.2d 1277, and Pinkus v. Pearson, 9 Cir., 1971, 449 F.2d 162, Wallace is entitled to his discharge.

Zemke v. Larsen, 9 Cir., 1970, 434 F.2d 1281, is not in point. In that case the deciding body was the Army Conscientious Objectors’ Review Board and, while the Board gave as its reason its conclusion that Zemke’s views were not based upon religious training and belief, it also appeared from the decision that the Board, which was the deciding body, had a second independent reason for disapproval of Zemke’s CO application, namely, that his beliefs were not sincerely held. We held that the first ground was ruled out by the subsequent decision of the Supreme Court in Welsh v. United States, 1970, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308, but that we could not tell whether the Board based its decision wholly or primarily on that ground or also on the ground of insincerity, and we remanded to permit the Board to decide whether insincerity was an independent ground. The situation in the present ease is different. There is nothing in the decision of the Assistant Chief, who had the ultimate deciding authority, to indicate that he considered that Wallace was insincere. Under these circumstances, Tellez, supra, Christensen, supra, and Pinkus, supra, are in point. Zemke is not.

The order appealed from is reversed and the case is remanded to the district court with directions to issue the writ, unless within 30 days the Navy grants Wallace a discharge as a conscientious objector pursuant to 32 C.F.R. § 730.-18(p)(l).

MORELL E. SHARP,

District Judge (concurring, dissenting in part):

I concur with the majority in concluding that the judgment of the district court cannot be affirmed for the reason that the finding of the Assistant Chief, expressed in his denial letter is ambiguous. The letter seems to indicate that the plaintiff’s views have not changed except in degree since acceptance of his commission. The majority interprets this finding as an unjustified reliance on 32 C.F.R. § 730.18(b), which denies conscientious objection discharge when an in-service applicant’s views were crystalized prior to entry into service, even though these views, if properly presented prior to entry, would have qualified him for exemption from service. In my opinion, however, the Assistant Chief’s findings can also be reasonably interpreted as suggesting that the plaintiff was insincere in his beliefs initially and is still insincere. This was the conclusion of the investigating officer as quoted in the majority opinion. In my view, the record would clearly support denial on that basis. Accordingly, I believe that the Navy should have the opportunity to clarify its decision on remand.

In the three decisions cited by the majority as supporting reversal, Tellez v. Chaffee, 467 F.2d 218 (9th Cir. 1972), Christensen v. Franklin, 456 F.2d 1277 (9th Cir. 1972), and Pinkus v. Pearson, 449 F.2d 162 (9th Cir. 1971), there was no possibility of an ambiguous second basis for the denial by the military service. Once the stated finding in each of these cases had been found to lack basis in fact, there was no alternative to reversal.

On the other hand, Zemke v. Larsen, 434 F.2d 1281 (9th Cir. 1970), is directly in point. There, the court looked behind the basis for denial stated by the Army Conscientious Objector Review Board (a procedure specifically rejected in today’s majority opinion) and examined the notes of the individual Board members to uncover a possible basis for rejection besides the impermissible one stated in the Board decision. That action was remanded to allow the military-service a reasonable time for reconsideration. The same course should be followed here where the written decision of the deciding authority could arguably be found to contain a proper basis for denial besides the early crystalization basis rejected by the court.


author: COFFIN, Chief Judge. LEVIN H. CAMPBELL,

text:
    Waldemar Georg SINT, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 74-1055.
    United States Court of Appeals, First Circuit.
    Argued June 5, 1974.
    Decided June 28, 1974.

      Joseph F. O’Neil, Boston, Mass., with whom Peter L. Zimmerman, Boston, Mass., was on brief, for petitioner.
    William A. Brown, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for respondent.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

This appeal challenges the decision of the Board of Immigration Appeals that petitioner is deportable and inadmissible into the United States under § 241(a) (1) of the Immigration and Nationality Act, as amended, 8 U.S.C. § 1251(a) (1) (1970). Petitioner claims that the decision is not supported by evidence sufficiently clear, unequivocal, and convincing, see 8 C.F.R. § 242.14(a) (1973), to constitute reasonable, substantial and probative evidence of alienage and therefore deportability under the Act. 8 U.S. C. § 1252(b)(4) (1970).

The Immigration Judge properly received in evidence a statement concerning petitioner’s alien status made by petitioner in March of 1970 in connection with deportation proceedings then pending. Petitioner’s argument that receipt of such evidence constitutes a violation of his right to due process by subjecting him to double jeopardy fails. We pass the question whether a claim of double jeopardy may properly apply to civil proceedings, and assume arguendo that petitioner’s voluntary departure from this country in April of 1970 is sufficiently like a deportation proceeding to invoke the claim of double jeopardy. Such a claim, nevertheless, is foreclosed because the proceedings here related to violations of the immigration laws different from those which formed the basis for the prior proceedings.

The statement made in March of 1970 concerning his Austrian citizenship is relevant as background to petitioner’s present deportability, and is clearly admissible as a prior statement under the immigration regulations promulgated by the Department of Justice, 8 C.F.R. § 242.14(c) (1973), and consistent with their judicial construction and application. See, e. g., Castillo-Lopez v. Immigration and Naturalization Service, 437 F.2d 74 (5th Cir. 1971). We conclude, therefore, that consideration of such a statement is both “appropriate to the ease and just to the party affected.” Whitfield v. Hanges, 222 F. 745 (8th Cir. 1915).

While an admission of foreign citizenship made in 1970 is persuasive evidence of alienage in 1970, such an admission cannot alone be said to constitute clear and convincing evidence of alienage four years later. Proof of alien-age at a time in the past might, in the absence of any evidence of a change in the condition, give rise to an inference that alienage continues, Hauenstein v. Lynham, 100 U.S. 483, 484, 25 L.Ed. 628 (1879); Ng Kam Fook v. Esperdy, 320 F.2d 86, 89 (2d Cir. 1963). As to proof of alienage for the purposes of determining deportability pursuant to 8 U.S. C. § 1252(b) (4), however, proof of alien-age four years before, without more, falls short of providing the “clear, unequivocal, and convincing” evidence, 8 C.F.R. § 242.14(a) necessary to constitute “reasonable, substantial, and probative” proof of facts alleged as grounds for determining deportability. Yet the Board of Immigration Appeals appears to have sustained the decision that petitioner is an alien solely on the basis of this prior admission. Such a decision cannot stand, absent additional evidence to sustain the government’s burden to demonstrate that petitioner remained an alien of this country during the four years following his voluntary departure. We find no such evidence on this record, although, as our following discussion reveals, we have carefully scrutinized the record to see if there was any solid basis for the Board’s conclusion.

The sum total of evidence in the trial record consists of: (1) the expiration of visas issued prior to May of 1969; (2) the absence of any record of visas issued to petitioner between May, 1969, and March, 1970; (3) petitioner’^ motion to suppress evidence in which he refers to the burden the government bears in offering the confession of “an alien”; (4) a 1958 conviction for theft in Austria and a more recent abandonment of his Austrian wife and child; (5) petitioner’s application for voluntary departure and his statement that if deported he would choose to return to his “own country”. As to (1) and (2), these items would tend to demonstrate unlawful entry only if present alienage were established. As to (3), (4), and (5), there is no indication that the Immigration Judge relied on these factors. Moreover, (3) could hardly be said to be a concession in light of the purpose of the motion and petitioner’s persistence in pressing his claim that the government had failed to prove present alien-age ; (4) is of no help in determining petitioner’s present sttaus; and both (4) and (5) are relevant for our purposes only to petitioner’s application for voluntary departure in lieu of deportation only if he were to be found deportable.

The record also reveals evidence of petitioner’s status as an alien which came to light only after the decision of the Immigration Judge. In argument before the Board of Immigration Appeals, counsel for petitioner asserted the due process rights of “an alien”, but such an assertion less likely concedes alienage than merely posits the logical contention that the procedural rights of an alien should extend to one who is charged with being an alien. There is also evidence in the record that petitioner has applied for a stay of deportation pending the disposition of his recent application for a visa. Such application can hardly be said to concede alienge, but reflects instead the practical exercise of a procedural option left to petitioner following the official determination that he is deportable.

Finally, the record reveals a statement by the Austrian Consulate General that petitioner may return to Austria as a citizen of that country. Yet this evidence, like the other evidence considered in this paragraph, came to light only after the decision of the Immigration Judge and could not have formed a basis for his judgment. Thus it cannot influence our consideration of the propriety of that judgment. We conclude that the record in this case, though scrupulously read, fails to reveal the clear, unequivocal, and convincing evidence necessary to establish petitioner’s citizenship between 1970 and 1974.

Given the failure of proof, the conclusion of the Immigration Judge that there was sufficient proof of alien-age to warrant deportation impermissibly imposed the burden of proving alien-age upon petitioner. It is the government’s burden to demonstrate that petitioner remained an alien of this country during the period of time at issue. See 8 U.S.C. § 1252(b)(4) (1970); 8 C.F.R. § 242.14(c) (1973). See also Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966); Gastelum-Quinones v. Kennedy, 374 U.S. 469, 83 S.Ct. 1819, 10 L.Ed.2d 1013 (1963). The Immigration and Naturalization Service may well have searched its records and those of the State Department to ■ determine whether petitioner has been issued visas between March of 1970 and the present time, or indeed whether he has become a citizen of this country. But there is not the slightest allegation in this record that it has done so, and we will not presume that it has done so.

The judgment of the Board of Immigration Appeals is reversed.

LEVIN H. CAMPBELL,

Circuit Judge (concurring).

I concur less because I have any fear that Mr. Sint was unfairly treated than because I think the United States Government should not be bailed out from the need to present an adequate prima facie case where the matter to be proven is so patently simple and within its power to prove. We-1 should not encourage the cutting of corners by an agency having such significant responsibilities. On the other hand I have little sympathy for Sint's claim that he was fouled when he has not even had the candor to state whether or not he claims to be a citizen. Had the Government’s ease rested on matters which it could not readily be expected to prove from its own stock of information, I would require Sint at least to go through the motions of telling us that he believes he has a colorable claim to citizenship before wasting our time with his complaint. Cf. Bilokumsky, supra.

      . To the extent that Bilokumsky v. Tod, 263 U.S. 149, 44 S.Ct. 54, 68 L.Ed. 221 (1923), cited in concurrence, could be read to place the burden of going forward on a defendant in a deportation proceeding, it may be inapposite now that the government must sustain a “clear, unequivocal, and convincing” burden of proof.

      . This decision makes unnecessary our consideration of the question whether the successful establishment of alienage may, consistent with the purpose of the Immigration and Nationality Act and the requirements of the Constitution, impose upon a respondent the burden of explaining the time, place and manner of entry, and, that failing, raise a presumption of unlawful entry. See 8 U.S. C. § 1361 (1970).


author: JAMES HUNTER, III, Circuit Judge:

text:
    CONLEY MOTOR EXPRESS, INC., a corporation, Appellee, v. Harry M. RUSSELL et al., Appellants.
    No. 73-1934.
    United States Court of Appeals, Third Circuit.
    Argued May 28, 1974.
    Decided July 2,1974.

      Samuel J. Pasquarelli, Pittsburgh, Pa., for appellee.
    Paul D. Boas, James H. Logan, Pittsburgh Pa., for appellants.
    Before ROSENN and HUNTER, Circuit Judges, and HANNUM, District Judge.
   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This is an appeal from a preliminary injunction enjoining appellants and all those acting in concert with appellants from picketing appellee’s place of business.

Since this appeal involves only a review of a preliminary injunction, the narrow question before us is whether the grant of the injunction by the district court was an abuse of discretion. United States Steel Corp. v. Fraternal Ass’n of Steelhaulers, 431 F.2d 1046, 1048 (3d Cir. 1970).

Appellants are owner-operators of trucks which they lease to Conley Motor Express, appellee. Conley is a trucking concern engaged in the transportation of goods, mainly steel, in interstate commerce. The steel companies pay Conley a certain rate for hauling the steel. Conley in turn pays a certain percentage of this to appellants for the use of their trucks and their services as operators.

For several years the Fraternal Association of Special Haulers (“FASH”) has been seeking recognition as collective bargaining agent for appellants. In 1970 this Court upheld a preliminary injunction enjoining picketing by FASH and owner-operator members of FASH. We held that FASH had failed to meet its burden of showing that it was a labor organization immunized from the anti-trust laws. United States Steel Corp. v. Fraternal Ass’n of Steelhaulers, 431 F.2d 1046 (3d Cir. 1970).

On two occasions, once in 1971 and once in 1973 (during the pendency of the district court proceedings), the National Labor Relations Board (“NLRB”) has rejected petitions by FASH for “certification of representative” under section 9(c) of the National Labor Relations Act, 29 U.S.C. § 159. On both occasions the NLRB held that appellants were independent contractors and not employees.

Thwarted by the decision of this Court in 1970 and by the decisions of the NLRB, appellants, with the assistance and aid of FASH, began picketing Conley’s place of business on July 23, 1973 for the purpose of obtaining recognition of FASH as appellants’ collective bargaining agent and of obtaining a more favorable financial arrangement between Conley and appellants. Although the officers of FASH who had been organizing the picketing were included within the scope of the injunction, neither FASH nor its officers have chosen to appeal the district court’s order.

Initially, we note that appellants do not question that Conley would have sustained irreparable injury in the absence of preliminary relief. Moreover, appellants do not dispute that their picketing is properly enjoinable as an illegal combination in restraint of trade, if such activity does not fall within the labor exemption to the anti-trust laws. Thus,if the district court was justified in believing that Conley had shown a reasonable probability of success at final hearing, the preliminary injunction must be affirmed. Only a clear abuse of discretion will justify appellate reversal. United States Steel, supra.

Appellants essentially argue that unlike the situation confronting this Court in 1970, FASH is now a “labor organization” under the National Labor Relations Act, and appellants, notwithstanding their independent contractor status, are seeking traditional labor objectives. Thus, they argue they should be exempt from the anti-trust laws. We disagree.

Even assuming arguendo that FASH is a “labor organization” and appellants are seeking traditional labor objectives, appellants have nonetheless not shown the primary prerequisite for exemption from the anti-trust laws, i. e., that their dispute with Conley involves an employer-employee relationship.

It is well settled that the provisions of the Sherman, Clayton and Norris-LaGuardia Acts must be considered together in determining the scope of the exemption of labor activities from the anti-trust provisions. E. g., United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788 (1941); Allen Bradley Co. v. Local Union, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945).

Section 20 of the Clayton Act, 29 U. S.C. § 52 provides that no restraining order or injunction shall be granted by any federal court,

“in any case between an employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employment, involving, or growing out of, a dispute concerning terms or conditions of employment. >>

The statute, however, does not define “a dispute concerning terms or conditions of employment.”

Section 1 of the Norris-LaGuardia Act, 29 U.S.C.A. § 101, divests federal courts of jurisdiction to issue an injunction “in a case involving or growing out of a labor dispute. . . . ” Section 13 of the Norris-LaGuardia Act, 29 U. S.C. § 113(c) provides:

“The term ‘labor dispute’ includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximaté relation of employer and employee.”

Congress enacted the NorrisLaGuardia Act to define the congressional conception of a “labor dispute” in terms that “no longer leave room for doubt.” United States v. Hutcheson, 312 U.S. at 234, 61 S.Ct. at 467. As the Supreme Court stated in Columbia River Packers Ass’n v. Hinton:

“This definition [of ‘labor dispute’ in 29 U.S.C. § 113(c)] and the stated public policy of the Act — aid to ‘the individual unorganized worker commonly helpless to obtain acceptable terms and conditions of employment’ and protection of the worker ‘from the interference, restraint, or coercion of employers of labor’ 29 U.S.C.A. § 102 — make it clear that the attention of Congress was focused upon disputes affecting the employer-employee relationship. .
“We recognize that by the terms of the statute there may be a ‘labor dispute’ where the disputants do not stand in the proximate relation of employer and employee. But the statutory classification, however broad, of parties and circumstances to which a ‘labor dispute’ may relate does not expand the application of the Act to include controversies 'upon which the employer-employee relationship has no bearing. Our decisions in New Negro Alliance v. Grocery Co., 303 U.S. 552, [58 S.Ct. 703, 82 L.Ed. 1012] and Milk Wagon Drivers’ Union v. Lake Valley Co., 311 U.S. 91, [61 S.Ct. 122, 85 L.Ed. 63] give no support to the respondents’ contrary contention, for in both eases the employer-employee relationship was the matrix of the controversy.’’ [Footnotes deleted. Emphasis added.]

315 U.S. 143, 145-147, 62 S.Ct. 520, 521, 86 L.Ed. 750 (1942). See Taylor v. Local 7, International Union of Journeymen, Horseshoers, 353 F.2d 593 (4th Cir. 1965), cert. denied, 384 U.S. 969, 86 S.Ct. 1859, 16 L.Ed.2d 681 (1966).

Regardless of how appellants may seek to characterize their objectives in picketing, appellants have failed to show that the employer-employee relationship forms the matrix of their controversy with Conley. Therefore, we are satisfied. that the district court did not abuse its discretion in granting the preliminary injunction.

The judgment of the district court will be affirmed.

      . The district court delayed its decision until the NLRB rendered its ruling on the independent contractor status of appellants. Cf. International Association of Heat & Frost Insulators & Asbestos Workers v. United Contractors Association, Inc., 483 F.2d 384 (3d Cir. 1973).

      . Appellants’ counsel at oral argument suggested that even though the NLRB decisions have effectively prevented appellants from using NLRB procedures to force Conley to recognize FASH, appellants may nonetheless attempt to achieve the same result through other channels, e. g., through picketing Conley’s place of business.