author: LIVELY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James J. O’NEILL et al., Defendants-Appellants.
    No. 73-2124.
    United States Court of Appeals, Sixth Circuit.
    Decided May 31, 1974.

      Reuben M. Payne, Sindell, Sindell, Bourne, Stern & Spero, Cleveland, Ohio, on brief for appellants.
    Frederick M. Coleman U. S. Atty., David Margolis, Steven R. Olah, Paul R. Corradini, Special Attys., Crim. Div., U. S. Dept, of Justice, Cleveland, Ohio, on brief for appellee.
    Before LIVELY and ENGEL, Circuit Judges, and CECIL, Senior Circuit Judge.
   LIVELY, Circuit Judge.

The appellants James J. O’Neill and Richard Boucher were convicted on one count of interstate transmission of wagering information in violation of 18 U. S.C. § 1084. Their appeal is limited to questions that were first raised in the district court on a motion to suppress evidence which emanated from interceptions of telephone conversations made pursuant to an order entered by a United States Judge on April 18, 1972. The motion to suppress was denied following a hearing in the district court.

O’Neill and Boucher conducted an operation in Tonawanda, New York in which they furnished “line” information by telephone to bookmakers and other gamblers, advising them of the point spread and odds being quoted in various parts of the country on athletic contests. They also handled “layoff” bets on horse races for other bookmakers. The investigation which resulted in the indictment and conviction of appellants began some time prior to January 7, 1972. • On that date a New York State District Attorney obtained from Justice Mahoney of the Supreme Court of New York an authorization to intercept conversations over a telephone located at Cheektowaga, New York. Neither of the appellants was named in the application for the wiretap order, but the order permitted interception of conversations of “others as yet unknown.” The January 7 order contained a number of protective provisions including the following:

(h) That, in the event that unknown- suspects are identified during the course of the interception process or if the interception process reveals evidence of crimes which are not specified in this Ex parte Order of Authorization, District Attorney MICHAEL F. DILLON shall, no later than three (3) days after the date of the return, make application, in conformance with the provisions of Section 2517(5) of Title 18, of the United States Code and Section 700.65(4) of the Criminal Procedure Law of the State of New York, for a nunc pro tunc order amending this order to include the newly discovered material; . . .

The January 7 order was amended on January 27, 1972 upon application of District Attorney Dillon supported by an affidavit of the officer in charge of the investigation. The names of three additional persons were included in the January 27 amendment to the order. However, neither of the appellants was named. On February 17, 1972, District Attorney Dillon filed a new application with Justice Mahoney in which the Appellant O’Neill was named as a person whose conversations were to be intercepted, and the location in Tonawanda, New York from which he operated and the telephone number there which was registered in his wife’s maiden name were designated for electronic surveillance. The application was supported by the affidavit of the same investigator, and it disclosed that O’Neill’s activities had first come to the attention of the police as a result of his making numerous calls to the telephone in Cheektowaga which were intercepted pursuant to the January 7 order. Justice Mahoney granted the wiretap order for the Tonawanda telephone on February 17, 1972 and thereafter the investigators learned from interception of conversations on that telephone that O’Neill was receiving gambling information from parties using a telephone in Bedford Heights, Ohio. On April 18, 1972, the Chief Judge of the United States District Court for the Northern District of Ohio entered an ex parte order which authorized interception of conversations over the Bedford Heights, Ohio telephone. This order was entered in response to an application filed by a representative of the Department of Justice pursuant to authorization by Acting Attorney General Kleindienst. The supporting affidavit which was presented to the district judge incorporated portions of the affidavit which had been filed by the New York investigator in connection with the February 17 order of Justice Mahoney and disclosed that communications had been intercepted pursuant to the previous New York State authorization of February 17.

The first contention of appellants is that the New York authorities violated the terms of the January 7 order by failing to have it amended upon learning the identity of O’Neill. While conceding that it was permissible to intercept conversations of O’Neill as one who was unknown at the time the first wiretap order was granted, appellants maintain that failure to comply with the amendment provisions of that order renders all evidence which flowed from it, either directly or indirectly, tainted and subject to suppression. It was shown that the investigating officers knew of O’Neill’s identity as one of the frequent callers to the intercepted telephone at the time they sought an amendment on January 27 and added names of other suspects. It is provided in 18 U.S.C. § 2518(10) (a)(iii) that a motion may be made by one aggrieved for suppression of the contents of a communication or evidence derived therefrom if “the interception was not made in conformity with the order of authorization or approval.” While there was no violation of the terms of the federal order, it is contended that violation of the previous state order which provided the information upon which the federal order is based vitiates the federal order as well.

The provision for amendment of the New York order was included, insofar as it referred to the discovery of evidence of crimes not specified therein, in order to comply with 18 U.S.C. § 2517(5) and § 700.65(4) of the Criminal Procedure Law of the State of New York. There appears to have been a split among the lower courts of New York at the time the state court orders with which we are concerned were entered on whether subsequent discovery of the identity of previously unknown suspects required an amendment. This question was settled by the Court of Appeals of New York on July 6, 1972 when it held in People v. Gnozzo, 31 N.Y.2d 134, 335 N.Y.S.2d 257, 286 N.E.2d 706 (1972), cert. denied, sub. nom., Zorn v. New York, 410 U.S. 943, 93 S.Ct. 1373, 35 L.Ed.2d 610 (1973), that the statutory requirement for amendment applies only to the discovery of a different crime and does not require amendment to include the identity of a previously unidentified party. Thus it appears that the failure of the New York District Attorney to obtain an amendment of the January 7 order to include the name of O’Neill did not violate a statute, but at most failed to conform with the terms of the January 7 order.

In United States v. George, 465 F.2d 772, 775 (6th Cir. 1972), this court held that “wire tap evidence secured without regard to the limitation set forth in the authorization order is inadmissible.” In that case, the order authorizing the wiretap directed that interception only take place when surveillance had indicated that the persons named in the order were on the premises and should be continued only when it was determined by voice recognition that one of the named persons was using the telephone. It was admitted by the FBI agent in charge of the investigation that he had never seen this order and that no special instructions had been given limiting the interceptions. Furthermore, none of the recording officers knew the voices of the persons named in the order. Appellants argue that our decision in George compels suppression of the evidence objected to in this ease. Reliance is also placed on United States v. Cafero, 473 F.2d 489 (3rd Cir. 1973), where it was held that one of the basic safeguards of the federal act authorizing interception of communications is the requirement that the authorizing judge be aware of the activities of those involved in the surveillance and the information which is being produced. It is claimed that the failure of the New York officers to comply with the amendment provision of Justice Ma-honey’s order “broke the chain of judicial supervision.”

No New York case has been cited or found which decides whether the exclusionary rule should be applied to evidence obtained after failure to comply with a requirement of a wiretap order such as that involved in this case. The appellee points out, however, that the same state judge who granted the January 7 order also granted the authorization of February 17. The February 17 authorization was specifically directed to O’Neill with knowledge that O’Neill’s identity was discovered as a result of interceptions made pursuant to the January 7 order. This is clear from examining the application and affidavit for the February 17 order. Since Justice Mahoney knew at the time he considered the February 17 application that O’Neill’s identity had been learned prior to the January 27 amendment and that he had not been included therein, the appellee argues that the granting of the February 17 authorization constitutes approval of a new application in lieu of an amendment. A somewhat similar circumstance was involved in United States v. Tortorello, 480 F.2d 764 (2d Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973). There, a number of renewal and extension orders were obtained from the judge who had issued an original wiretap authorization. Although the original order authorized interceptions to obtain evidence of certain enumerated state crimes, some of the intercepted conversations disclosed other activities which constituted federal offenses. Federal authorities were notified and joined in the surveillance, but none of the orders was amended to include reference to the federal offense for which the defendant was eventually indicted. While acknowledging that both the federal and New York statutes provide for amendment to permit the use in criminal proceedings of communications unexpectedly intercepted, the court pointed out that the reports submitted to the judge in connection with applications for extensions revealed that the interceptions had disclosed the existence of the federal offense which was not anticipated at the time of the original application. The court held that the judge had before him sufficient information to make a determination that the original application was made in good faith and that the information about the crime which was not specified in the first application was incidentally intercepted during the course of a lawfully executed order. In denying a motion to suppress, the court made the following observation:

Neither the New York statute nor the Act requires the issuing judge to announce formally in open court that he has noticed the interception of evidence not covered by the original order and has determined that it was properly obtained. It is enough that notification of the interception of evidence not authorized by the original order be clearly provided in the renewal and amendment application papers. A judge presumably will scrutinize any application and will scrupulously impose the restrictions required by statute. 480 F.2d at 783.

A careful consideration of the entire record, including the exhibits which contain the applications and supporting affidavits for each of the state and federal wiretap orders convinces us that District Judge William K. Thomas correctly denied the motion to suppress. Justice Mahoney of the New York Supreme Court, who authorized both the January 7 and February 17 interception orders, was aware of the fact that O’Neill was not named in the application or order on January 7 or the amendment thereto on January 27. Nevertheless, on the basis of the investigator’s affidavit which clearly showed that O’Neill had been identified prior to January 27 as a direct result of interceptions which took place pursuant to the January 7 order, the judge granted a new authorization on February 17 specifically directed to the activities of O’Neill. Although the order did not state that he accepted the application for a new authorization in lieu of an amendment to the previous order, it seems clear to us that this was the intent and effect of his decision to grant the February 17 order. Since the judge who entered the original order did not consider it to be violated and proceeded to enter a subsequent order which led to the evidence constituting probable cause for issuance of the federal order, the federal order was not tainted by failure of the New York authorities to seek an amendment to the first state court order.

We have spoken in this section of the opinion almost exclusively of O’Neill. This results from the fact that Boucher’s position in the case is somewhat unclear. He was mentioned as a co-conspirator for the first time in an order of March 9, 1972 extending the February 17 authorization. Although Boucher makes some reference to the failure of the February 17 order to name him, he claims that his rights were violated by the failure to amend the original January 7 order to name O’Neill. We do not believe that Boucher is a person “aggrieved” by the failure to amend the January order and thus he has no standing to seek suppression on the basis of failure to amend that order. 18 U.S.C. § 2518(10) (a). Even if he could be held to be a person aggrieved, Boucher has tied his ease completely to that of O’Neill which we have held on this issue to be without merit.

The second contention of the appellants is that the application for the federal order did not set forth sufficient information for the judge to make a determination of the necessity for an interception of communications as required by 18 U.S.C. § 2518(1) (c) and (e). We have examined the affidavit which accompanied the application for the federal order and note that the FBI agent who made the application stated that “all confidential informants who have been reliable in furnishing information with regard to gambling activities in the Cleveland area were contacted . . . and none were able to furnish any information . . . ” concerning the parties named or the activity, location or telephone listed in the application. The affidavit went on to describe in detail the methods of operation used by gamblers and the insufficiency of their records for the establishment of the elements of the federal violations which were being investigated. These are not mere conclusory statements, but rather are statements of fact from which the Judge could make a determination that “(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;” before he enters an ex parte order. The facts submitted in this case justified the entry of the order.

Appellants also rely on 18 U.S.C. § 2518(1) (e) which requires a complete statement from the applicant of facts concerning all previous applications for wiretap orders. The application for the federal wiretap in this case disclosed the New York State court order of February 17, which was the only order directed to O’Neill. Appellants concede that the federal officers who requested the April 18 order did not know of the January 7 and 27 orders, but maintain that they should have been more diligent in learning of these orders. Section 2518(1) (e) requires disclosure of all previous applications “known to the individual authorizing and making the application.” Since the application disclosed the only previous authorizations known to the applicants and to the Acting Attorney General who authorized the application, there was complete compliance with the requirement of the statute. Since neither O’Neill nor his residence or facilities were involved in the January 7 application and order it would not appear that the statute would require disclosure thereof even if their existence had been known to the federal applicants. We also note that the Appellant Boucher was not a person “aggrieved” by the failure to list the January 7 application and order in the application for federal authorization and he has no standing on this issue.

The third basis upon which appellants seek suppression of evidence is their claim that the statutory procedure was not followed in obtaining authorization from the Attorney General of the United States to make application for the federal order. Again, we have carefully examined the original documents which were filed as exhibits and have concluded that the procedure set forth in 18 U.S.C. § 2516 was followed in this case. Appellants argue that the reference by the Acting Attorney General to a recommendation from an Assistant Attorney General in his approval of the authorization indicates that the Acting Attorney General merely “rubber stamped” that recommendation and that the authorization is an “institutional decision” rather than the individual decision of the Acting Attorney General. There is nothing in the documents or elsewhere in the record to indicate that the Acting Attorney General did not make the determination himself and there is nothing in the statute or statutory history to indicate that the Attorney General may not consult with and receive recommendations from subordinates within the Justice Department before determining whether to authorize an application for an interception order. As Judge Thomas pointed out from the bench, “Attorney General Kleindienst’s specific recitation warrants the inference, the only reasonable inference that the attorney general independently considered the recited nature and bounds of the application that he was authorizing. The policy of congress, therefore, expressed in the requirement of Section 2516 is, I find, fully satisfied.” This finding is fully supported by the record.

The final contention of appellants is that Title III of the Omnibus Crime Control Act of 1968 which contains the wiretap authorization statute is unconstitutional. It is claimed that the statute permits authorization for interception of communications with no particular description of the communications to be intercepted and thus fails to meet the requirements of the Fourth Amendment as set forth -in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). We believe that Congress carefully noted the limitations required for a constitutional wiretap statute as detailed in Berger v. New York, supra, and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In Katz, the Supreme Court held that electronic surveillance is not unconstitutional per se, and we find no basis for holding that Title III of the Act is unconstitutional on its face or that it was unconstitutionally applied in this case.

The judgment of the district court is affirmed.


source: Caselaw Access Project

author: FRIENDLY, Circuit Judge:

license: Public Domain

text:
    Jeffrey HART, etc., et al., Plaintiffs-Appellants, v. The COMMUNITY SCHOOL BOARD OF BROOKLYN, NEW YORK SCHOOL DISTRICT #21, etc., et al., Defendants-Appellees. The COMMUNITY SCHOOL BOARD OF BROOKLYN, NEW YORK DISTRICT #21, etc., et al., Defendants and Third-Party Plaintiffs-Appellees, v. John V. LINDSAY, etc., et al., Third-Party Defendants-Appellees.
    Docket 74-1453.
    United States Court of Appeals, Second Circuit.
    Argued April 30, 1974.
    Decided May 16, 1974.
    As Amended June 3, 1974.

      James I. Meyerson, New York City (Nathaniel R. Jones, New York City, and NAACP Special Contribution Fund, of counsel), for plaintiffs-appellants Jeffrey Hart et al.
    Hyman Bravin, New York City, for defendant Community School Bd. #21.
    Elliot L. Hoffman, New York City (Adrian Burke, Corp. Counsel, New York City, of counsel), for defendant Chancellor Irving Anker and third-party defendant Housing and Development Administration.
    Cyril Hyman, New York City (Edward Boyd, U. S. Atty., E. D. N. Y., of counsel), for third-party defendant U. S. Dept, of Housing and Urban Development.
    Robert Hammer, New York City (Louis J. Lefkowitz, Atty. Gen., State of N. Y., of counsel), for third-party defendant N. Y. S. Div. of Housing and Community Renewal and Urban Development Corp.
    Jeanne Hollingsworth, New York City, of counsel to Edward W. Norton, New York City, Gen. Counsel, for third-party defendant N. Y. C. Housing Authority.
    Before WATERMAN, FRIENDLY and MULLIGAN, Circuit Judges.
   FRIENDLY, Circuit Judge:

A motion by plaintiffs-appellants in this school desegregation case for a preference and cross-motions by the state and city defendants and third party defendants-appellees for dismissal or, in the case of the city defendants, alternatively for summary affirmance, raise problems of some procedural complexity.

The plaintiffs in this action in the District Court for the Eastern District of New York, characterized by the district judge as the “first New York City school desegregation case to reach a federal court,” brought in August 1972, are a black, a Puerto Rican and a white child attending Mark Twain Junior High School (Public School #239) in Coney Island (suing in their own behalf and in behalf of others similarly situated) and the parents association of the school. The original defendants were the Community School Board of Brooklyn, New York, District #21, of which Mark Twain is a part; the acting superintendent of the district; members of the school board; and the chancellor of the Board of Education of the City of New York. Claiming that any segregation was a result of housing patterns for which others were responsible, the school board and one of its members impleaded the City of New York, the may- or, and a variety of city, state and federal housing and urban development boards and officials. A motion for a preliminary injunction was withdrawn in November 1972 on assurance that there would be an expedited trial. Although this was completed by March 1973, plaintiffs ultimately renewed their motion for a preliminary injunction because of aggrievement at the length of time that appellees were being allowed for briefs.

When the district court denied this, an appeal was taken to this court, 28 U.S.C. § 1292(a)(1). Observing that the “litigation comes to us in a curious posture,” the panel which heard that appeal directed that the judge either make the findings of fact and conclusions of law required by F.R.Civ.P. 52(a) when a temporary injunction is granted or denied, or reach an expedited final determination. Hart v. Community School Board of Brooklyn, 487 F.2d 223 (2 Cir. 1973) (per curiam). In pursuit of the second of these alternatives, and after taking further evidence and hearing argument, the judge, on December 19, 1973, announced that he was going to find the school board and the chancellor “liable under the Constitution, for conducting a segregated institution in violation of the Constitution,” that he wanted a desegregation plan “effective September,” but that he was doubtful that he would be able to file his opinion by the end of 1973, as he had hoped when the appeal from the denial of the temporary injunction was argued in this court.

On January 28, 1974, Judge Weinstein filed a comprehensive opinion of 152 typewritten pages. The court found that although Mark Twain had “never been operated under a constitutional or statutory provision that mandated or permitted racial segregation in public education,” Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 191, 93 S.Ct. 2686, 2689, 37 L.Ed.2d 548 (1973), the school’s racial imbalance was due to factors for which the state was responsible under the criteria laid down in the Denver case, with particular emphasis on Mr. Justice Powell’s concurrence. While we shall not attempt to encapsulate the long opinion in a sentence, the responsibility was thought to be two-fold: action or inaction by the school board; and action by the housing authorities which greatly increased the proportion of black and Puerto Rican families, particularly as a proportion of families with children, in what had been a predominantly white neighborhood. Because of this the court, although finding “liability” solely on the part of the school authorities, considered it appropriate to impose duties on the housing officials as well, and indeed in addition on the Police Commissioner, the - Commissioner of Recreation, and the Metropolitan Transit Authority which had not yet been joined as parties.

In the portion of his opinion entitled “REMEDY”, the judge stated that, in accordance with the invariable practice, “local school authorities must be given an opportunity to provide an acceptable plan for eliminating the illegal segregation at this school.” The plan not only “must eliminate racial and ethnic segregation” but “should also provide a practical method of minimizing community conflicts and maximizing educational opportunities for the present and potential students of the school.” The court then said, in a passage critical to the controversy before us:

The parties will have until March 1, 1974 to submit such a detailed plan to be placed in operation by September, 1974.

The plan was to take account of the “six basic elements in successful -school integration” as listed by the Select Senate Committee on Equal Educational Opportunity, 92d Cong.2d Sess., Toward Equal Educational Opportunity 29-31 (Comm. Print 1972), of which early integration is only one. Various essential features were discussed in some detail. Housing officials of the city, state and federal governments were directed to provide a joint plan so designed that, in a phrase of the chancellor, the area would be “re-fertilized with new families.” Police, transit and recreational officials were also directed to submit plans that would facilitate the desegregation. A hearing was set for March 5, 1974.

Hearings were held as scheduled and on April 1, 1974, Judge Weinstein filed a second opinion. He concluded that

Despite the cooperation of the parties and their counsel, it is apparent that a complete and integrated proposal covering education, housing and related matters has not yet been formulated.

He criticized the plans submitted by the plaintiffs, by the school board and by the chancellor. Plans submitted by other agencies were deemed inadequate, the judge saying he had received virtually nothing from the housing authorities. In light of all this, the judge wrote:

Testimony at the hearing made it clear that plans to deal comprehensively with conditions that have figured in the segregation of Mark Twain cannot be executed by September of 1974. Accordingly, the desegregation of Mark Twain is postponed to September 1975.

In order to avoid a repetition of the March 1974 experience, the judge appointed a highly qualified professor at the Law School of Columbia University as special master to work with the parties in the development of a suitable and comprehensive plan. The master was to deliver his final report no later than July 1, 1974 and a further hearing was set for July 15. After having unsuccessfully sought reconsideration of the one-year postponement of the desegregation date, plaintiffs appealed from that portion of the April 1, 1974 order and moved for a preference so that their appeal could be determined well before the beginning of the next school year. This having been denied by a single judge, plaintiffs moved for reconsideration.

The appealability of the direction for postponement cannot be considered in vacuo. Although the school board and its members and the acting superintendent of the district filed a protective notice of appeal from the decision of January 28, 1974, they did nothing actively to prosecute the appeal, evidently believing that the decision was not appealable under Taylor v. Board of Education of New Rochelle, 288 F.2d 600 (2 Cir. 1961). We there held that when a district court has simply found segregation by a school board to be unconstitutional and has directed the board promptly to submit a plan for ending it, without any “injunction” other than the direction to file the plan, the decision is not appealable at that time. However, if we were to hold the postponement of the effective date of the desegregation to be appealable, we would feel compelled to allow defendants, cf. Langnes v. Green, 282 U.S. 531, 51 S.Ct. 243, 75 L.Ed. 520 (1931), to contend not only that the postponement was proper but that desegregation should not have been ordered at all. We would thus be forced into consideration, on an expedited basis not necessitated by the district judge’s own timetable, of a most serious constitutional question to which the district judge devoted months of thought, which the cooperative efforts of the judge, the master, and the parties, conceivably although perhaps optimistically, may make it unnecessary for us to decide at all, and which at least will be given concrete and integrated form by those efforts so that review “in pieces” and in the “abstract” can be avoided. See Taylor v. Board of Education of New Rochelle, supra, 288 F.2d at 605. Only a strong showing by appellants would lead us to hold that we are required to decide such a question now.

Instead, the rationale of Taylor necessarily results in a conclusion of unappealability here. Since the judge had neither entered a final judgment nor issued an injunction, there was no legally effective order which he could either modify or stay. When his decision of January 28, 1974 is read in context, it is plain that he had not, as appellants assert, directed desegregation by September 1974; he had simply directed that the plans to be submitted by March 1, 1974 should so provide. When he examined the plans, he became convinced that none of them was suitable for implementation. Appellants seek to make much of a statement by the judge on the reconsideration hearing that “a plan can be drawn with all the details very promptly within a matter of weeks if I order it, and that that plan could be put into operation in September of 1974, moving children around and moving teachers around in that district.” But, as the quotation itself intimates, the judge was not and never had been prepared to make such an order since, in his view, a plan of that sort would not “be an effective plan.”

We do not disagree with appellants that there may be circumstances where failure to order a desegregation long overdue constitutes a denial of an injunction even though those formal words are not uttered. Appellants place great reliance on Kelley v. Metropolitan County Board of Education of Nashville, 436 F.2d 856 (6th Cir. 1970), but the differences are greater than the similarities. There, after he had rendered a devastating opinion strongly indicating the lines which a desegregation plan should take, and after the school board had submitted a plan in purported compliance, the district judge stayed indefinitely all proceedings and hearings concerning the proposed plan or possible alternatives pending the decision of certain school cases in the Supreme Court. Moreover, as said by the court of appeals, the case was “growing hoary with age” — one of the consolidated cases going back to 1955 and the other to 1960, 436 F.2d at 858. Here, in contrast, the district court is laboring earnestly on the development of a satisfactory plan; it hopes to finish its work within two years after suit was brought, and expects to implement the resulting plan just three years from the date of the complaint. No one could properly characterize this vigorous conduct as a de facto denial of an injunction. Adhering to Taylor, we hold that the action taken by Judge Weinstein on April 1, 1974 was not appealable and dismiss the appeal, thereby mooting the motion for a preference.

We add that if the order were in fact appealable, we would grant the city defendants’ motion for summary affirmance. The judge’s decision in this rapidly progressing northern desegregation case, where he has believed a plan of unprecedented scope to be required and is pressing hard for speedy formulation of such a plan, contrast Alexander v. Holmes County Board of Education, 396 U.S. 1218, 90 S.Ct. 14, 24 L.Ed.2d 41 (1969) (Black, Cir. J.); id., 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed. 19 (1969) (per curiam); Carter v. West Feliciana Parish School Board, 396 U.S. 226, 90 S.Ct. 467, 24 L.Ed.2d 382 (1969) (per curiam); id., 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970) (per curiam), was well within the wide discretion accorded to district courts in the framing of remedies. Cf. International Salt Co. v. United States, 322 U.S. 392, 400-401, 68 S.Ct. 12, 92 L.Ed. 20 (1947); Chance v. Board of Examiners, 458 F.2d 1167, 1178 (2 Cir. 1972); Vulcan Society v. Civil Service Comm’n, 490 F.2d 387, 399 (2 Cir. 1973); Coalition for Education in District One v. Board of Elections, 495 F.2d 1090, 1094 (2 Cir. 1974). This is true even though the judge’s decision rested partly on his fears concerning “the readiness of the community,” see note 5 supra, Keyes v. School District No. 1, Denver, Colorado, 396 U.S. 1215, 1217, 90 S.Ct. 12, 24 L.Ed.2d 37 (1969) (Brennan, Cir. J., vacating stay by court of appeals of preliminary injunction entered by district court).

The appeal is dismissed for lack of an appealable order. The motion for a preference is dismissed as having become moot.

      . In order to avoid any possible misunderstanding on a matter that has aroused much emotion, we wish to make it crystal clear that this opinion deals only with procedural problems and intimates no views whatever on the merits.

      . As of this writing, the black child is no longer a student at Mark Twain.

      . Appellants’ counsel stated at argument that the district judge had “voided” this notice. Examination of the transcript of the hearing of March 5, 1974 indicates that, despite some language along these lines, all that the judge really did was to assert, quite properly in our view, that since his decision of January 28 was not then appealable, the notice of appeal did not strip him of jurisdiction to continue his work on the remedy.

      . After referring to the Taylor decision, 9 Moore, Federal Practice ¶ 110.20 [1] at 235 (Ward ed. 1973), says that “the weight of authority would appear to be the other way.” The two cases cited for this statement do not bear it out. In Board of Public Instruction of Duval County, Florida v. Braxton, 326 F.2d 616, 619 (5 Cir.), cert. denied, 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216 (1964), Chief Judge Tuttle correctly distinguished Taylor on the basis that then District Judge Kaufman’s initial decision in Taylor had not contained any words of restraint, whereas in Braxton, the district court had actually enjoined the doing of certain acts and then merely deferred the effective date of the injunction while directing “that a plan be submitted that would provide for carrying out the [injunctive] paragraphs that were to be later effectuated.” Id. (emphasis deleted). In Board of Education of Oklahoma City v. Dowell, 375 F.2d 158 (10 Cir.), cert. denied, 387 U.S. 931, 87 S.Ct. 2054, 18 L.Ed.2d 993 (1967), after the board had filed two unsatisfactory plans, the court appointed a panel of experts to devise a new plan and ultimately ordered the board to submit a plan substantially identical with that recommended by the experts; this seems to have been simply a polite gesture, no different in substance from the court’s directing the board to comply with the report of the experts as modified. The point of Taylor was that there had not yet been any plan which the court was prepared to order. Bradley v. Milliken, 468 F.2d 902 (6 Cir.), cert. denied, 409 U.S. 844, 93 S.Ct. 45, 34 L.Ed.2d 83 (1972), cited in the cumulative supplement of Moore for use in 1974, is in accord with Taylor, although arising in a somewhat different posture (order to submit desegregation plan issued after mere ‘‘pretrial conference”). Compare Bradley v. Milliken, 484 F.2d 215 (6 Cir.), cert. granted, 414 U.S. 1038, 94 S.Ct. 538, 38 L.Ed.2d 329 (1973) (appeal granted under 28 U.S.C. § 1292(b) from orders finding segregation and outlining extremely broad geographic ambit of type of plan to be sought, which orders were concededly “interlocutory”). In any event Taylor is the law of this circuit and we have no disposition to modify it in cases where, as here, the judge’s initial decision simply found liability and directed the defendants and others to assist the court in the expeditious framing of a decree.

      . Elaborating on this, Judge Weinstein said: It is not only the question of buildings, it is the question of the readiness of the community, both parents and the children; it is the question of whether the children will go into institutions where they will be received properly and not with hostility; it is a question of whether the educational program will benefit all the children of all races and ethnic backgrounds, or whether we will have an order which will give the appearance of accomplishing something when it does not accomplish anything.


author: PER CURIAM.

text:
    Jane DOE et al., Appellees, v. Honorable Calvin L. RAMPTON, Individually and in Ms capacity as Governor of the State of Utah, and Paul S. Rose, Individually and in his capacity as Executive Director of the Utah State Department of Social Services, Appellants.
    No. 73-1864.
    United States Court of Appeals, Tenth Circuit.
    Argued April 16, 1974.
    Decided June 7, 1974.

      Vernon B. Romney, Atty. Gen., Clair J. Jaussi and W. Michael Howery, Asst. Atty. Gen., Salt Lake City, Utah, for appellants.
    David S. Dolowitz, Salt Lake City, Utah, for appellees.
    Before LEWIS, Chief Judge, and SETH and McWILLIAMS, Circuit Judges.
   PER CURIAM.

This is another in the continuing line of eases dealing with the interaction of state regulations or statutes with the federal statutes for providing Aid to Families with Dependent Children. The issue here is whether the State of Utah’s regulations requiring a “caretaker relative,” see 42 U.S.C. § 606(a), in this instance a mother, to cooperate with the state in identifying and locating an absent parent, usually the father, with the duty of support for a minor child or children, are in conflict with the provisions of the Social Security Act of 1935, §§ 401, 402(a) (10) and 406, 42 U.S.C. §§ 601, 602(a) (10), and 606, and therefore void under the Supremacy Clause of the United States Constitution, Article VI, IF 2.

The complaint asserts the conflict of the regulations to raise the supremacy issue which is generally described as a “statutory issue,” and also alleges that the state regulation requires some of the plaintiffs to reveal extramarital acts which constitute violations of Utah law; thus a Fifth Amendment claim. The complaint thus also seeks declaratory and injunctive relief.

All of the plaintiffs are citizens of the United States and the State of Utah. All are mothers who received AFDC payments in varying forms and amounts on behalf of themselves and their children from the Assistance Payments Administration of the Utah State Department of Social Services. All have been threatened with a reduction in AFDC assistance by the Assistance Payments Administration because they refuse to cooperate, for varying and individual reasons, in providing information regarding the absent fathers of their children.

The trial court, on cross-motions for summary judgment by the parties with stipulated facts, held that the state regulations were contrary to the federal statutes and enjoined the enforcement of the state regulations. Were it not for the fact that on May 3, 1973, the United States Department of Health, Education and Welfare promulgated certain regulations which the appellants contend authorized the state regulations here in question, we would feel compelled to affirm the judgment of the district court, without more, on the authority of Doe v. Swank, 332 F.Supp. 61 (N.D.Ill.1971), aff’d sub nom., Weaver v. Doe, 404 U.S. 987, 92 S.Ct. 537, 30 L.Ed.2d 539 (1971); Taylor v. Martin, 330 F.Supp. 85 (N.D.Cal.1971), aff’d sub nom., Carleson v. Taylor, 404 U.S. 980, 92 S.Ct. 446, 30 L.Ed.2d 364 (1971); Meyers v. Juras, 327 F.Supp. 759 (D.Or.1971), aff’d sub nom., Juras v. Meyers, 404 U.S. 803, 92 S.Ct. 91, 30 L.Ed.2d 39 (1971).

Sections R-6050 and P-6050 of the Utah State Department of Social Services, Assistance Payments Administration, Policy Manual, Vol. Ill, Income Maintenance Regulation, provide that:

“R-6050. The natural father (and mother) are equally responsible for support of their minor children. When a duty of support exists, appropriate action shall be taken by Assistance Payment workers to obtain support from the responsible parent.
“Parents of specified relatives, acting as payee for minor children in their care, must assist the Office of Assistance Payments in establishing paternity and in seeking support.
“P-6050. 1. When a duty of support exists on the part of the recipient, the Assistance Payment worker will initiate the following action:
“a. Determine if support payments are actually being received in full from the responsible parent.
“b. If these payments are being received, adjust the grant accordingly by deducting this amount from the Standard grant.
“c. If these payments are not being received, or are not in the amount ordered by the court, or being received irregularly, the following procedures shall apply:
“(1) The applicant/recipient (parent or specified relative) must assist the Assistance Payments Administration in seeking support for the eligible children in the home.
“(a) The District Assistance Payments Office shall request the applicant/recipient to provide absent parent information by completing and signing form 61-D, Referral for Duty of Support or Paternity.
“(c) If the applicant/recipient refuses to complete and/or sign the form 61-D, or if he refuses to cooperate in providing more absent parent information to the Bureau of Recovery Services, he shall be excluded from the grant. However, AFDC assistance shall not be denied an otherwise eligible AFDC child because the parent or specified relative refuses to assist. (See P-5130 for grant computation).
“(e) When an otherwise eligible parent with income refuses to assist in seeking support and is consequently excluded from the grant, the income of the parent shall still be used in computing the grant for the eligible children.
“(f) There shall be no waiver of the requirement that the applicant/ recipient complete the form 61-D. The applicant/recipient, however, may have reason to request that duty of support action not be taken. If this occurs, the District Assistance Payment Office shall attach to the completed form 61-D a written explanation of the applicant/recipient’s reasons. The Bureau of Recovery Services will arrange a personal interview with the applicant/ recipient before any action is initiated.
“(2) The eligible household will be provided with an appropriate grant less any other income.
“(3) The parent or specified relative will be instructed to refund to APA any support payment which is received.
“2. A duty of support does not exist in the case of an unwed mother unless paternity has been legally established. However, the unwed mother is required to assist Assistance Payments workers in establishing paternity. The same procedures outlined above shall be followed whether paternity has or has not been established, except:
“a. When paternity has not been established, the unwed mother shall not be requested to sign form 421.
“b. The procedure shall not be initiated until the child is born.
“c. When the child is born, the unwed mother shall be allowed 30 days from the date of birth to agree to cooperate in establishing paternity. The District Assistance Payments Office shall not apply any sanction until the 30-day period is over.”

Sections R-6050 and P-6050 of the Income Maintenance Rgulation are not dissimilar to section 101-a of the New York Social Services law, as amended by Chapter 687, Section 1, of the Laws of New York 1972. In holding section 101-a invalid as being in conflict with the Federal Social Security Laws, the court in Shirley v. Lavine, 365 F.Supp. 818 (N.D.N.Y.1973) (three-judge court), stated that:

“ . . . Every court that has considered the question of such conditions of eligibility has found itself compelled to invalidate them. (Footnote citations omitted). To argue, as the state does here, that it is only the noncooperating mother who is penalized and not the innocent child or children is unrealistic. The distinction has been consistently rejected by the court. (Footnote citations omitted).”

Despite the attempt of the State of Utah to characterize sections R-6050 and P-6050 as not an additional eligibility requirement, but rather a “method of obtaining information so that actual need and therefore eligibility may be determined,” it is clear that the state conditions continued aid upon a mother’s compliance with the sections. This is contrary to the teachings of Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448, and our decision in Vialpando v. Shea, 475 F.2d 731 (10th Cir.), aff’d sub nom., Shea v. Vialpando, - U.S.-, 94 S.Ct. 1746, 40 L.Ed.2d 120, 42 U.S.L.W. 4559.

The amendment to 45 C.F.R. § 233.90, 38 Fed.Reg. 10940 (No. 85, May 3, 1973), by the Department of Health, Education and Welfare, and upon which the appellants place much reliance, is set out along with its history in Shirley v. Lavine, 365 F.Supp. 818 (N.D.N.Y.), and need not be repeated here. That court’s reasoning is persuasive. It said in part:

“ . . . The amendment is a departure from the agency’s past position. It also runs counter to the consistent construction placed on the Social Security Act by the courts.
“In our view the amended regulation does little to support the validity of [the state statutory provision].
“‘[T]he principle that accords substantial weight to interpretation of a statute by the department entrusted with its administration is inapplicable insofar as those regulations are inconsistent with the requirement of § 402(a) (10) that aid be furnished “to all eligible individuals.” ’ [Townsend v. Swank, 404 U.S. at 286, 92 S.Ct. 502, 30 L.Ed.2d 448.].”

The court in Shirley also noted that because HEW, prior to the promulgation of the May 3, 1973, amendment, had in fact never considered that a noncooperating AFDC recipient could be cut off from benefits, it could scarcely be said that the agency’s interpretation was “settled” or “followed consistently,” see New York Dept. of Social Services v. Dublino, 413 U.S. 405, 420, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973). The court in Shirley also said:

“Moreover, the unbroken line of court decisions construing these provisions and the absence of any Congressional corrective action persuade us that the agency’s new interpretation is in error and not a guidepost to be followed judicially.”

Although the plaintiff-appellees’ complaint alleges constitutional issues which must be substantial enough to establish federal jurisdiction, the district courts have been admonished by the Supreme Court to avoid a constitutional ruling, if possible, by a decision of the “statutory” issue. Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442. Furthermore, it has now been decided that the single judge court may and should decide the “statutory” claim. The Court so held in Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577. A divided Court there decided that although the allegation of a constitutional issue raised a substantial constitutional question, a three-judge court need not be convened, and the single judge court could treat the supremacy issue as pendent, and decide it. If such a decision was contrary to the state’s position, this would end the case; if it were not contrary, a three-judge court would then have to decide the constitutional question.

The decision in Hagans is a new development of substantial proportions in the lore relating to three-judge courts; the appeal, as the one before us, goes in such instances to the Court of Appeals and not to the Supreme Court. The result is that there never was a three-judge court, and “jurisdiction” of the action remained in the one-judge court. The Court does not discuss the “substantiality” of the constitutional issues as this relates to the requirement that a three-judge court be convened. The consequence is, of course, to make it easier for the plaintiff to come within 28 U.S.C. § 1343. The allegations of the constitutional issues in the case before us are much more substantial than in the cited case of Hagans v. Lavine.

Thus, it is apparent that the single judge district court followed the procedure permitted by Hagans v. Lavine in deciding the statutory question over which it had pendent jurisdiction. Its decision in this respect, which we hold to be correct, obviated the need to determine the constitutional challenges as well as the need to convene a three-judge court under Hagans v. Lavine.

The judgment of the district court is therefore affirmed.


author: PER CURIAM:

text:
    RELIABLE TRANSFER CO., INC., Plaintiff-Appellee and Cross-Appellant, v. UNITED STATES of America, Defendant-Appellant and Cross-Appellee.
    Nos. 540, 803, Dockets 73-1513, 73-2325.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 19, 1974.
    Decided May 23, 1974.

      Herbert B. Halberg, New York City (Krisel, Beck & Halberg, New York City, on the brief), for plaintiff-appellee and cross-appellant Reliable Transfer Co., Inc.
    Janis G. Schulmeisters, Atty., Admir. & Ship. Section, Dept, of Justice, New York City (Harlington Wood, Jr., Asst. Atty. Gen., Washington, D. C., Robert A. Morse, U. S. Atty., Brooklyn, N. Y., and Gilbert S. Fleischer, Atty. in Charge, Admir. & Ship. Section, Dept, of Justice, New York City, on the brief), for defendant-appellant and cross-appellee United States.
    Before LUMBARD, FRIENDLY and TIMBERS, Circuit Judges.
   PER CURIAM:

This case arises from a little saga of the sea — this time involving a coastal tanker, the Mary A. Whalen, that got lost in the waters just outside New York harbor on a clear night in December 1968 when the seas were rough, the tide was running strong and a breakwater light maintained by the Coast Guard was out. The tanker ended up stranded on a sand bar off Rockaway Point.

The owner of the tanker, Reliable Transfer Co., Inc., invoking the admiralty and maritime jurisdiction of the district court under the Suits In Admiralty Act, 46 U.S.C. § 741 et seq. (1970), sued the United States to recover damages sustained by the stranded tanker.

After a bench trial in the Eastern District of New York before Orrin G. Judd, District Judge, the court found that the stranding of the tanker was caused 25% by the negligence of the Coast Guard in its failure properly to maintain the breakwater light and 75% by the negligence of the vessel in making a U-turn in a dangerous channel when its captain knew that the breakwater light was not operating. The court held under controlling law that each party should bear half of the damages.

We hold that the court was not clearly erroneous in finding that the negligence of both parties, in the proportions stated, caused the stranding.

The vessel’s claim that it was not at fault borders on the frivolous; under circumstances requiring extreme care in navigation and with adequate navigation instruments available, the captain simply got lost and was considerably further north than he thought when he made a U-turn in a dangerous channel knowing that the breakwater light was not operating.

We also reject the government’s claim that its failure properly to maintain the breakwater light was merely a condition rather than a cause of the stranding. Surely it was a but-for cause. The court found, as common sense would dictate, that if the breakwater light had been operating the captain would not have stranded the vessel. Viewing the government’s claim as essentially a variation of the last clear chance doctrine-— given the captain’s knowledge of the dangerous situation, he should have been able to avoid the stranding — we refuse to apply here the doctrine of last clear chance which has been given only limited application in admiralty. See Petition Of Kinsman Transit Co., 338 F.2d 708, 719-21 (2 Cir. 19641, cert. denied, 380 U.S. 944 (1965).

We also decline the invitation to seize upon this case as a vehicle to overrule the equal division of property damage rule that has long applied in admiralty cases where both parties are at fault. Weyerhaeuser Steamship Co. v. United States, 372 U.S. 597, 603 (1963); The Max Morris, 137 U.S. 1, 13 (1890); North Star, 106 U.S. 17 (1882). And we particularly see no basis either in authority or in principle for saying that the rule should apply in collision cases but not in stranding cases; for it was so applied in Atlee v. Northwestern Union Packet Co., 88 U.S. (21 Wall.) 389 (1874). We of course are mindful of the criticism of the equal division of damages rule and we recognize the force of the argument that in this type of case division of damages in proportion to the degree of fault may be more equitable. Ulster Oil Transport Corp. v. The Matton No. 20, 210 F.2d 106, 110 (2 Cir. 1954) (L. Hand, J., dissenting); Black & Gilmore, Admiralty § 7-20, at 440 (1957). But we also are not insensitive to the considerations rooted in strong public policy that have impelled our Court as one of the inferior federal courts for many years to abstain from attempting to change the law in areas such as this, preferring to leave doctrinal development to the Supreme Court or to await appropriate action by Congress. In re Adams’ Petition, 237 F.2d 884, 887 (2 Cir. 1956); cf. Benazet v. Atlantic Coast Line Railroad Co., 442 F.2d 694, 697 (2 Cir. 1971), aff’d, 406 U.S. 340 (1972); McLaughlin v. Trelleborgs Augfartygs A/B, 408 F.2d 1334, 1338 (2 Cir.), cert. denied, 395 U.S. 946 (1969). As Judge Hincks so aptly put it in In re Adams’ Petition, supra, 237 F.2d at 887:

“[T]he rule of equal division of property damage is so well established in this country that it would create intolerable confusion were a court of intermediate jurisdiction such as ours to deviate from it. We shall therefore continue to apply the rule until there shall be authoritative sanction for departure therefrom.”

We agree.

We affirm substantially for the reasons set forth in the well reasoned opinion of Judge Judd below.

Affirmed.


author: BELL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lewis BLACK, Defendant-Appellant.
    No. 73-3777.
    United States Court of Appeals, Fifth Circuit.
    July 31, 1974.

      Howard Moore, Jr., Berkeley, Cal., Henry Sanders, Selma, Ala., for defendant-appellant.
    Charles White-Spunner, U. S. Atty., Irwin W. Coleman, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.
    Before BELL, SIMPSON and IN-GRAHAM, Circuit Judges.
   BELL, Circuit Judge:

This is an appeal from a conviction on two counts of a five count indictment charging embezzlement contrary to 18 U.S.C.A. § 657 in one count, and making or causing to be made false entries in four counts, in contravention of 18 U.S.C.A. § 1006. Because we find the evidence insufficient to sustain the conviction on either count, we reverse.

The Greenala Citizens Federal Credit Union was a federally chartered credit union in Hale County, Alabama. Mr. Charles Black, the appellant, was treasurer of the Credit Union, although the record reflects that he also had a full time job with the Federation of Southern Cooperatives. Mr. Clifford Griffin, who was president of the Credit Union during the time period in question, testified that as treasurer, appellant was responsible for maintaining the records and keeping the books of the Credit Union. Mrs. Mildred Black, appellant’s wife, was appointed by the directors as assistant treasurer with like responsibilities because, according to Mr. Griffin, “Mr. Black would be out most of the time.” Mr. Griffin, as well as Mr. Robert Wiltshire, supervisory examiner for the National Credit Union Administration, testified that two other women were also employed by the Credit Union as clerical personnel with access to the records of the treasurer. Mr. Wiltshire said that during his visits to the Credit Union he had seen both appellant and Mrs. Black making entries in the credit union books.

The first count of the indictment charged appellant as an officer and treasurer of the Credit Union with willfully and knowingly embezzling and misapplying $5,000 of the monies entrusted to the care and custody of the Credit Union and under appellant’s care, custody and control, and making and causing to be made a deposit of $5,000 of the Credit Union funds in a personal checking account in the Bank of Moundville, Alabama.

Sometime in June, 1968, the Southern Christian Leadership Conference (SCLC) in Atlanta, Georgia delivered a check for the amount of $14,480.00 payable to the Greenala Citizens Credit Union. The check was dated June 1, 1968 and contained a notation on the face of the check stating: “For transfer to Sabvings” (sic). On the reverse side of the check a handwritten endorsement read: “Pay to the Order of Greenala Citizens Federal.” A printed, stamped endorsement stated: “Greenala Citizens Federal Credit Union.” On June 22, 1968, the check was negotiated at the Bank of Moundville, Alabama.

A hand-written deposit slip was introduced in evidence showing that a $6,568.71 portion of the SCLC cheek was deposited to the account of the Credit Union. On the same date and at the same time, a deposit of $5,000 in cash was made to the joint bank account maintained at the Bank of Moundville in the name of “Louis Black or Mildred Black.” The parties stipulated that the $5,000 in cash was derived from the SCLC check. The statement of account or ledger sheet for the account of “Louis Black or Mildred Black” was introduced into evidence showing the $5,000 deposit. The statement of account or ledger sheet for the Credit Union was also introduced into evidence showing that the entire amount of the check from the SCLC was not deposited to the account of the Credit Union.

Victor B. Poole, vice president of the Bank of Moundville, testified that the “Louis Black or Mildred Black” account was a joint account, and either could deposit checks and withdraw funds from the account.

The defendant did not take the stand himself and his wife was not called as a witness.

In July, 1971, Mr. Robert Wiltshire commenced an examination of the books and records of the Credit Union that lasted for several months. He testified that $5,000 of the money from the SCLC check had not gone into the Credit Union’s account. He also said that the SCLC check was not part of the Credit Union’s records, although its accounts were otherwise balanced.

The third count of the indictment states that on or about June 20, 1968 appellant, as treasurer of the Greenala Citizens Federal Credit Union, did make and cause to be made in the members loan record of the Credit Union, on a sheet headed “Individual Share and Loan Ledger” for Andrew Holifield, an entry showing a loan payment in the amount of $325.71, which was said to be a false entry since appellant knew Andrew Holifield had not made any payment on this loan.

At the trial Mr. Holifield testified that he had not made payment of $325.-71 on June 20, 1968, or at any other time. Mr. Wiltshire testified that the loan ledger sheet in the name of Andrew Holifield contained an entry showing that $325.71 was paid on June 20, 1968. The defense introduced a “cash received voucher” showing a payment of $325.71 on the account of Andrew Holifield, and on the voucher was the notation: “Received by MB.” Mr. Holifield also testified that in January of 1964 appellant approached him and asked that since as an officer and treasurer appellant could not borrow money from the Credit Union whether Mr. Holifield would borrow money for the appellant. Mr. Holifield said appellant asked him to sign a promissory note for $750.00 so that the money could be delivered to appellant. Holifield signed the note and said he and the appellant used the money to rent land. It should be noted that appellant has not been indicted in any respect concerning this 1964 transaction.

* * *

Certain axiomatic principles govern appellate review of the sufficiency of the evidence to support appellant’s conviction. The evidence must be viewed in the light most favorable to the Government. Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. All reasonable inferences and credibility choices as will support the jury’s verdict of guilty must be made. See Gordon v. United States, 5 Cir., 1971, 438 F.2d 858.

The Government’s case cn both counts consisted solely of circumstantial evidence. The standard is well-settled in this Circuit that in a case based only on circumstantial evidence, the appellate task is to determine whether reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused’s innocence. Whether the evidence be direct or circumstantial, the matter of the defendant’s guilt is for the jury to decide unless the court concludes that the jury must necessarily have had a reasonable doubt. United States v. Velasquez, 5 Cir., 1974, 496 F.2d 1009 [No. 74-1262, slip opinion dated July 5, 1974]; United States v. Fontenot, 5 Cir., 1973, 483 F.2d 315, 321; United States v. Warner, 5 Cir., 1971, 441 F.2d 821, 830.

In the instant case the jury must necessarily have had a reasonable doubt as to both counts. Reasonable hypotheses of innocence were not excluded.

As will be seen, the proof on each count made out a classic case of an unexcluded reasonable hypothesis of innocence. See, as examples, United States v. Schorr, 5 Cir., 1972, 462 F.2d 953; United States v. Duke, 5 Cir., 1970, 423 F.2d 387; South v. United States, 5 Cir., 1969, 412 F.2d 697; Montoya v. United States, 5 Cir., 1968, 402 F.2d 847; Cuthbert v. United States, 5 Cir., 1960, 278 F.2d 220.

As to the first count, the evidence did not exclude the reasonable hypothesis that someone other than appellant converted or misapplied funds belonging to the Credit Union. Specifically, a reasonable hypothesis of Mr. Black’s innocence is that Mrs. Black committed the crime.

No witness testified Mr. Black received or negotiated the check. No witness testified that he deposited $5,000 in cash in his joint bank account. No witness testified that appellant counselled, procured, aided or abetted any other person to do or commit any act in connection with this transaction. Neither the teller at the bank who administered the transaction nor a documents examiner or handwriting expert was offered to connect appellant to the charged transaction.

The Government only demonstrated the circumstantial facts that appellant was treasurer of the Credit Union and a portion of the money in question was deposited in a bank account that appellant shared jointly with his wife. Had appellant exclusive control over the business affairs of- the Credit Union, or had the account in which the monies were ultimately deposited been exclusively Mr. Black’s, the reasonable hypothesis of innocence might have been excluded. Cf. McMillian v. United States, 5 Cir., 1968, 399 F.2d 478; United States v. Powell, 4 Cir., 1969, 413 F.2d 1037.

Based on the insufficiency of the evidence to exclude what is a reasonable hypothesis of innocence, the guilty verdict on the first count must be reversed.

Similar considerations govern review of the “false entry” count. There was no direct evidence to show that appellant made the entry or that he caused it to be made. The jury was apparently allowed to conclude that appellant must have made the entry because he was the treasurer of the Credit Union and because four years prior to when the false entry was alleged to have been made, he had induced Mr. Holifield to make a loan on appellant’s behalf through the Credit Union. Neither fact supports an inference, excluding every reasonable hypothesis of innocence, that appellant “did make and cause to be made ... an entry” in the loan records of the Credit Union. The record reflects that three other employees of the Credit Union, including appellant’s wife, had at least equal access to the records as appellant. There was moreover a loan payment receipt introduced for the Holifield $325.71 bearing the handwritten initials “MB.” See South v. United States, supra; Roberts v. United States, 5 Cir., 1969, 416 F.2d 1216. Thus Count Three must also be reversed.

Appellant’s other assignments of error are without merit.

Reversed and remanded for further proceedings not inconsistent herewith.

      . The trial court granted a motion for judgment of acquittal as to Counts Two and Four at the close of all the evidence. Count Five was dismissed on motion of the Government.

      . See note (4) infra; I Wigmore on Evidence § 475, 399 (3d ed. 1940).

      . The Government has argued, citing Ford v. United States, 5 Cir., 1954, 210 F.2d 313, 316-317, cert. denied, 1956, 352 U.S. 833, 77 S.Ct. 49, 1 L.Ed.2d 53, that the jury could infer from the failure of appellant to call his wife as a witness that her testimony would be unfavorable. The Government’s a priori argument is that this unfavorable inference excludes the reasonableness of appellant’s hypothesis of innocence. We need not decide the question of the inference’s effect on the sufficiency of the evidence issue in this ease.
      The rule permits such an inference only if a party has it peculiarly within his power to produce a witness whose testimony would elucidate the transaction in question. Ford v. United States, supra, 210 F.2d at 317; II Wigmore on Evidence § 286, 166-168 (3d ed. 1940). A defendant has a personal privilege to exclude the testimony of a witness spouse, and such a nonparty spouse is further accorded an independent spousal privilege not to testify. Wyatt v. United States, 1960, 362 U.S. 525, 80 S.Ct. 901, 4 L.Ed.2d 931; VIII Wigmore on Evidence § 2241, 254-256 (McNaughton rev. 1961). There is with the facts presented here the additional element of the wife’s own potential Fifth Amendment privilege against self-incrimination. Cf. San Fratello v. United States, 5 Cir., 1965, 340 F.2d 560, rehearing denied, 343 F.2d 711; Lawrence v. Wainwright, 5 Cir., 1971, 445 F.2d 281, 282. Under the particular facts of this case therefore, we cannot say that the inference is available where there has been no showing that appellant’s wife, and any testimony she might give, was peculiarly within appellant’s power to produce. See Tallo v. United States, 1 Cir., 1965, 344 F.2d 467; VIII Wigmore on Evidence, supra, § 2243, 259-261. Cf. Bisno v. United States, 9 Cir., 1961, 299 F.2d 711, 720-722, and 799 F.2d at 723 (J. Hamley concurring), cert. denied, 370 U.S. 952, 82 S.Ct. 1602, 8 L.Ed.2d 818; Courtney v. United States, 9 Cir., 1968, 390 F.2d 521, cert. denied, 393 U.S. 857, 89 S.Ct. 98, 21 L.Ed.2d 126, rehearing denied, 393 U.S. 992, 89 S.Ct. 440, 21 L.Ed.2d 457.

      . The Government and the trial court below considered Mr. Black’s 1964 involvement with Mr. Holifield as a direct link between appellant and the Holifield account. Appellant was not indicted for inducing Mr. Holifield to borrow money from the Credit Union for appellant’s personal usage or for making or causing to be made a false entry in connection with the 1964 event. Direct testimonial evidence supplied by Mr. Holifield concerned the 1964 transaction. This evidence is only within the chain of circumstantial evidence that the Government offered to show that appellant “made and caused to be made ... an entry” on Holifield’s account in 1968 in the loan records of the Credit Union. See McMillian v. United States, 5 Cir., 1968, 399 F.2d 478 (direct evidence that defendants had said their land did not run to “the still” was only circumstantial evidence linking the defendant with the still they were charged with operating); United States v. Greene, S.D.Ga., 1906, 146 F. 801, 824-825 (defining direct and circumstantial evidence) ; I Wigmore on Evidence § 25, at 398-406 (3d ed. 1940).


author: HILL, Circuit Judge.

text:
    PUEBLO OF SANDIA ex rel. Esquipula CHAVES, Governor, Plaintiff-Appellant, v. Mortis W. SMITH and Coronado Airport Inn, Inc., Defendants-Appellees.
    No. 73-1818.
    United States Court of Appeals, Tenth Circuit.
    June 11, 1974.

      Calvin Hyer, Jr., Albuquerque, N. M. (L. Lamar Parrish, Albuquerque, N. M., with him on the brief), for plaintiff-appellant.
    Norman S. Thayer, Albuquerque, N. M., for defendants-appellees.
    Before PICKETT, HILL, and BARRETT, Circuit Judges.
   HILL, Circuit Judge.

This is an appeal from an order granting summary judgment in an action for trespass to airspace.

Appellant Pueblo of Sandia is a duly recognized Indian tribe residing in the State of New Mexico. Appellee Coronado Airport is a New Mexico corporation engaged in the business of operating a small, privately run airport, and appellee Smith is its owner. The land on which the airport is located is immediately adjacent to, and abuts, land owned by appellant. The airport operates two runways, one being a north-south runway which ends at the boundary line of appellant’s land.

On March 3, 1973, appellant instituted suit against appellees in the United States District Court for the District of New Mexico. The complaint alleged that airspace necessary for approaches and departures on the airport’s north-south runway extended over and trespassed on, appellant’s land. Damages, injunctive relief, and an order requiring appellees to purchase a permanent easement were requested. Jurisdiction was founded on 28 U.S.C. § 1362.

Appellees answered and moved for summary judgment on the grounds, inter alia, that no genuine issues of material fact existed and that the complaint did not state a claim of actionable trespass. Appellees supported the motion with an affidavit indicating appellant’s land, for a distance of 3.4 miles from the boundary line, was uninhabited, unimproved and vacant.

Appellant opposed the motion and also provided affidavits. The affidavit of a real estate appraiser stated appellees’ operation adversely affected the market value of appellant’s land for potential commercial development. An agricultural engineer stated, in his affidavit, that he observed ascending and descending aircraft on June 21, 1973, and that forty-one of sixty-eight airplanes crossed appellant’s boundary line at heights of 150 feet or less.

The trial court granted appellees’ motion for summary judgment on the grounds no genuine issue of material fact existed and because appellant failed to show interference with actual, as distinguished from potential, use of its land.

Appellant’s main issue on appeal is that use need not be shown. Trespass, it asserts, is the entry on or interference with another’s realty or the airspace above it. The action being possessory in nature, interference with possession, and not use, is all that must be shown. Since an owner’s right to possession extends upward to the point of possible or potential possession, appellant argues, low level flights over its land amount to an actionable trespass.

Appellant’s theory has its origin in the common law doctrine that ownership of land extends to the periphery of the universe. This theory, however, was severely limited in United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946), where the Supreme Court declared federal statutes, together with administrative regulations, had the effect of making the airspace above prescribed minimum altitudes of flight a public highway. Attempting to strike a balance between the interests of landowners and the aircraft industry the Court, in effect, divided the airspace into two strata. The landowner owned the airspace within the “immediate reaches” of the surface of his land, but the upper air was navigable airspace, in the public domain. The Court stated:

Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land.

Other decisions have gone further than to merely limit the extent of possession and have stated liability for trespass to airspace does not exist absent interference with the landowner’s actual use, as distinguished from potential use or bare possession.

Thus to recover, a landowner must allege and prove that low level flights are within the immediate reaches of, and interfere with the actual use of, his land. When the present case is considered in this context, we cannot conclude that the trial court erred in granting appellee’s motion for summary judgment. The complaint did not allege, and the accompanying affidavits did not show, a substantial interference with the actual use of appellant’s land.

Nor does the record support a conclusion that appellant has sustained actual injuries or damages. Appellant contends the allegation and proof of actual damages is unnecessary because violation of a landowner’s possessory right constitutes a trespass for which at least nominal damages are presumed. This is ordinarily true when trespass to realty is concerned. But traversing the airspace above a plaintiff’s land is not, of itself, a trespass. It is lawful unless done under circumstances which cause injury. United States v. Causby, supra; Hinman v. Pacific Air Transport, 84 F.2d 755 (9th Cir. 1936), cert. den’d, 300 U.S. 654, 57 S.Ct. 431, 81 L.Ed. 865 (1937).

Alternatively, appellant contends the trial court should have considered its allegation of a decreased market value for potential use as an element of damages. It appears, however, that low level flights must be a direct, immediate and present cause of injury, and not speculative or a mere possibility. See, e. g., Freeman v. United States, 167 F.Supp. 541 (W.D.Okl.1948). Nor do we consider as persuasive appellant’s argument that the trial court failed to consider present damages. No present and substantial interference with the existing use of the land was shown. The record discloses that the nearest improvement on appellant’s land is 3.4 miles from the boundary line adjoining appellees’ runway, and that the land is uninhabited and put to no use whatsoever. Moreover, appellees stated that flights would proceed at higher altitude if appellant’s land were put to some use.

Appellant also asserts the trial court lacked jurisdiction to determine the respective rights of the parties in a summary proceeding. This argument fails to distinguish between a summary and a plenary proceeding. We are not here faced with a summary trial, which would be improper, but with an expeditious procedure for summary judgment in an ordinary, plenary action. This is entirely proper under Rule 56 F.R.Civ.P., and appellant’s argument is therefore without merit.

Appellant’s other issues, that genuine issues of material fact existed as to present damages and the exact altitude of aircraft, need not be considered. The record discloses no damages, and our decision makes immaterial the exact altitude of the aircraft.

Affirmed.

      . Causby, which was concerned with the glide path of low level flights, was decided before “navigable airspace” was redefined to include “airspace needed to insure safety in take-off and landing of aircraft.” 49 U.S.C. § 1301(24). See also 14 C.F.R. §§ 91.79, 91.-85 and 91.89. Subsequent decisions, however, have not denied landowners recovery for flights which are in the navigable airspace but nonetheless interfere with use of the immediate reaches. See, e. g., Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962); Speir v. United States, 485 F.2d 643 (U.S.Ct.Cl.1973).

      . See, e. g., Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962); Hinman v. Pacific Air Transport, 84 F.2d 755 (9th Cir. 1936), cert. den’d, 300 U.S. 654, 57 S.Ct. 431, 81 L.Ed. 865 (1937); City of Newark v. Eastern Airlines, Inc., 159 F. Supp. 750 (D.N.J.1958). See also Restatement (Second) of Torts, Explanatory Notes § 159, comment k at 283 (1965), which states in part: “Subsequent Federal cases have limited the trespass liability to such cases, so that, even though there is a flight below the prescribed minimum altitude, there is no trespass unless there is such interference with actual, as distinguished from potential, use.”

      . This is in accord with the view adopted in Restatement (Second) of Torts § 159(2) (1965). which states:
      (2) Flight by aircraft in the airspace above the land of another is a trespass if, but only if,
      (a) it enters into’ the immediate reaches of the airspace nex't to the land, and
      (b) it interferes substantially with the other’s use and enjoyment of his land.

      . “The main characteristic differences between a summary proceeding and a plenary suit are: The former is based upon petition, and proceeds without formal pleadings; the latter proceeds upon formal pleadings. In the former, the necessary parties are cited in by order to show cause; in the latter, formal summons brings in the parties other than the plaintiff. In the former, short time notice of hearing is fixed by the court; in the latter, time for pleading and hearing is fixed by statute or by rule of court. In the former, the hearing is quite generally upon affidavits; in the latter, examination of witnesses is the usual method. In the former the hearing is sometimes ex parte; in the latter, a full hearing is had.” New Hampshire Fire Ins. Co. v. Scanlon, 362 U.S. 404, 80 S.Ct. 843, 4 L.Ed.2d 826 (1960).


author: HUFSTEDLER, Circuit Judge: JAMES M. CARTER, Circuit Judge

text:
    Yale SIMONS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 71-2263.
    United States Court of Appeals, Ninth Circuit.
    May 8, 1974.

      A. Alexander Katz (argued), Phoenix, Ariz., for petitioner-appellant.
    Michael B. Scott (argued), William C. Smitherman, U. S. Atty., N. Warner Lee, Asst. U. S. Atty., Phoenix, Ariz., for respondent-appellee.
    Sheldon Mitchell, American Civil Liberties Union, Phoenix, Ariz., for amicus curiae.
    Before CARTER and HUFSTEDLER, Circuit Judges, and PREGERSON District Judge.

       Central District of California.

   HUFSTEDLER, Circuit Judge:

Simons appeals from dismissal of his action for lack of jurisdiction.

The facts of this case may be gleaned from the pleadings and the affidavits in support of the motions of Simons and the Government for summary judgment. Simons is a public spirited citizen whose chief interest is the rehabilitation of ex-convicts. He is the founder of a nationwide organization, “The 7th Step Foundation,” dedicated to assisting ex-convicts to become useful members of society. In the course of the foundation’s program, Simons learned that an ex-convict named Hand, who was actively engaged in rehabilitation work for the foundation, had been helping another ex-convict, George Hargrove. Hand knew that Hargrove had a job waiting for him if he could obtain a car for transportation. Simons knew, of course, that Hargrove had a criminal record. Hand and Hargrove were among more than 100 ex-convicts whom the foundation had been assisting. Hand, Simons, and Hargrove all signed a promissory note payable to an Arizona bank to enable Hargrove to obtain financing to purchase an automobile. Hargrove became the registered owner of the vehicle and executed a security agreement in favor of the bank. Hargrove made the payments to the bank until, on May 11, 1969, about two months after the purchase of the automobile, the Treasury Department seized the vehicle, under the provisions of 49 U.S.C. § 782, because Hargrove had been charged with transporting an illegal, unregistered firearm (26 U.S.C. §§ 5841, 5845(a)) in the vehide. The charges against Hargrove were later dismissed.

Almost immediately after the seizure, on May 15, 1969, Hargrove ceased and Simons began making payments for the car. On May 19, 1969, Simons, in a telephone conversation with Stan Cook, described in Simons’ affidavit merely as “the Federal Agent in Charge,” told Cook of Simons’ interest in the seized automobile. Nearly two months after Simons’ conversation with agent Cook, the Alcohol, Tobacco, and Firearms Division of the Treasury Department mailed to the bank and published in an Arizona newspaper notices of the impending forfeiture of the automobile. Because no one timely filed the required claim and cost bond (see 19 U.S.C. § 1608), the car was administratively forfeited (see 19 U.S.C. § 1609) on July 29, 1969. Simons apparently was notified personally neither of the imminence of the forfeiture nor, later, of the fact that the car had been administratively forfeited.

First the bank and then Simons sought administrative relief from forfeiture. The bank’s application for remission from forfeiture was denied on November 3, 1969, by the Alcohol, Tobacco and Firearms Division of the Treasury Department on the ground that the bank “failed to satisfactorily establish that through the exercise of reasonable diligence it could not have ascertained that at the time of the transaction, the person dealt with possessed a record and a reputation as a violator of the laws relating to commercial crimes.” Simons filed a formal petition with the Treasury Department on October 7, 1969, seeking remission, and, pursuant to the Department’s request, he filed an amended petition. After failing to receive any notice of disposition from the Department, he filed this action in the district court on March 9, 1970. The same day Simons was notified that his request for administrative relief had been denied. The Government then sold the automobile.

In the proceeding he filed in the district court, Simons initially sought remission of the forfeiture of the automobile. Before any pleading was filed by the Government, Simons filed an amended pleading modifying the caption and minor portions of the complaint. Also before any responsive pleading was filed, Simons moved for summary judgment, and the Government filed a countermotion for summary judgment and a motion to dismiss. In Simons’ reply to the Government’s motions, he prayed that the complaint be deemed amended to conform to the facts developed during the motions procedure, including the facts that “no notice of the forfeiture, other than the purported publication, was given Simons; that the car has been sold; that $250.00 was realized; that [Simons] claims that [the district court] has jurisdiction under the Tucker Act; and that [Simons] is entitled to damages based upon the appraised value of the car.” The district court denied Simons’ motion for summary judgment and granted the Government’s motion to dismiss for lack of jurisdiction. Upon appeal, we remanded to the district court to ascertain whether the court deemed the petition amended to state a claim under the Tucker Act (28 U.S.C. § 1346(a)(2)), as appellant had requested, before the court dismissed the action. The record contained no ruling on the request for amendment. The district court responded that it “did not deem the petition amended to state a claim under the Tucker Act for the reasons stated by Judge Carter in his opinion filed simultaneously with the above-mentioned order, and had the court so considered the petition as amended it still would have dismissed for the reasons stated by Judge Carter in his dissenting opinion.” The case is before us on resubmission.

If the district court correctly refused to deem the amendments made to the petition, the court was also correct in dismissing the cause for lack of jurisdiction, because there was no foundation for federal jurisdiction of the cause as pleaded in the original or the first amended petitions. Our court holds that a district court has no jurisdiction to remit or to mitigate a forfeiture, other than a forfeiture for violating internal revenue laws relating to liquor. (E. g., United States v. One 1967 Ford Mustang (9th Cir. 1972) 457 F.2d 931; United States v. Bride (9th Cir. 1962) 308 F.2d 470; United States v. Andrade (9th Cir. 1950) 181 F.2d 42.)

The district court should have deemed the pleading amended for the purpose of ruling on the motion to dismiss, unless the amendment would have been futile. (Foman v. Davis (1962) 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222; Breier v. Northern California Bowling Proprietors’ Ass’n (9th Cir. 1963) 316 F.2d 787.).

The amendment would not have been futile because a complaint so amended would state a claim for relief under the Tucker Act, 28 U.S.C. § 1346(a)(2). (Menkarell v. Bureau of Narcotics (3d Cir. 1972) 463 F.2d 88; United States v. One 1961 Red Chevrolet Impala Sedan (5th Cir. 1972) 457 F.2d 1353; Jaekel v. United States (S.D.N.Y.1969) 304 F.Supp. 993; cf. Ramsey v. United States (9th Cir. 1964) 329 F.2d 432 (semble).) Relief under the Tucker Act is founded on the legal theory that the forfeiture was unlawful, rather than on the theory that, even if the forfeiture was lawful, the claimant is an innocent party who should be given discretionary relief from the effects of the forfeiture. The former theory relates to the propriety of the forfeiture; the latter concerns the manner of disposing of property properly forfeited (see 19 U.S.C. § 1613). It is not inconsistent, therefore, to hold both that district courts are without jurisdiction to remit or mitigate forfeitures and that district courts have jurisdiction to award relief from unlawful forfeitures. While the Secretary has been given sole power to mitigate the effects of proper forfeitures, he has not been given sole power to determine the propriety of the forfeitures themselves. Thus, in Andrade, Bride, and One 1967 Ford Mustang, the court evaluated the propriety of each forfeiture; after the forfeiture was held lawful in each case, the court ruled that the district courts were powerless to mitigate the impact of the forfeitures. The amendment should therefore have been allowed; accordingly, when the pleading is deemed amended, as it must be, the dismissal for lack of jurisdiction was error.

Of course, Simons may be unable to prove that he had a valid interest in the vehicle at the time it was forfeited (i. e., that the forfeiture deprived him of “property” within the meaning of the due process clause). He may also be unable to prove that, even if he had a protected property interest in the car, his interest was sufficiently significant and the circumstances were such that the notice given by the Government did not comport with the requirements of due process. (Cf. Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 317-318, 70 S.Ct. 652, 94 L.Ed. 865.) But those questions were not reached by the district court, and they cannot be resolved until the record is clarified and amplified either by additional affidavits directed towards summary judgment, or, in the event a material issue of fact emerges, by trial.

Simons’ attempted appeal from denial of summary judgment, a nonappealable order, is dismissed. The judgment is reversed.

JAMES M. CARTER, Circuit Judge

(dissenting):

I incorporate my dissent from the prior decision in this case, Simons v. United States (9 Cir. 1973) 480 F.2d 805.

I add the following. The majority details Simons’ interest and activities in rehabilitating ex-convicts. This has nothing to do with the legal problem involved.

The basis for the majority holding is footnote 3 — viz., that “it is not inconsistent to hold both that the district courts are without jurisdiction to remit or mitigate forfeitures . . . and that district courts have jurisdiction to award relief from unlawful forfeitures.” (Emphasis added)

The word “remit” is defined as “to absolve; to release from punishment or penalty; to annul a fine or forfeiture; to release; to relinquish; to remove; to discharge from.” 76 C.J.S. p. 905. Thus the word is broad enough to “grant relief from unlawful forfeitures,” the phrase used by the majority.

Since our ninth circuit cases cited in my prior dissent hold that a district court has no jurisdiction to remit a penalty (grant relief from a forfeiture), the decision flies in the face of our decisions and an in banc should be required to overrule them.

The majority decision will do nothing but cause trouble. Granting jurisdiction to the district courts to remit or set aside forfeitures on the suit of private persons will: (1) by-pass the exclusive authority granted by the Congress to the Secretary of the Treasury, now Attorney General, to decide whether or not to remit a. forfeiture, and (2) increase the number of filings in the now overcrowded district courts.

The judgment below should be affirmed.

      . Judge Carter’s dissent from the panel’s remand order is reported at 480 F.2d 805.

      . “Rule 15(a) declares that leave to amend ‘shall be freely given when justice so requires’ ; this mandate is to be heeded. . . . If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be ‘freely given.’ ” (371 U.S. at 182.)
      Of the factors that Foman indicates might justify a refusal to grant leave to amend, only “futility of amendment” is even arguably relevant in this ease. Nor do any technical defects in Simons’ motion to amend justify the district court’s refusal to allow the amendment. The fact that the initial pleading was verified .by Simons rather than subscribed by his lawyer (see Fed.R.Civ.P. 11) was inadequate basis for refusing to deem the pleading amended for the purpose of passing on a motion to dismiss. The deficiency could easily have been cured had it been called to Simons’ attention. (See Burak v. Pennsylvania (E.D.Pa.1972) 339 F.Supp. 534, 535 n. 2.) Nor was it proper to refuse to treat Simons’ pleading as amended merely because he did not denominate his request a “motion for leave to amend” (see Davis v. Yellow Cab Co. (E.D.Pa.1964) 35 F.R.D. 159, 162) and did not tender formal amendments (see Smith v. Blackledge (4th Cir. 1971) 451 F.2d 1201).


author: AINSWORTH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jim Ed WALKER, Defendant-Appellant.
    No. 73-3792
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 26, 1974.
    Rehearing Denied Aug. 16, 1974.

      B. Reagan McLemore, III, Longview, Tex. (Court-appointed), for defendant-appellant.
    Roby Hadden, U. S. Atty., H. Kelly Ireland, Asst. U. S. Atty., Tyler, Tex., for plaintiff-appellee.
    Before BROWN. Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   AINSWORTH, Circuit Judge:

Jim Ed Walker and Francis Eugene Carpenter were indicted together in a six-count indictment arising from the theft of property from an interstate shipment. They were tried together before a jury. Walker was found guilty on one count charging knowing possession of goods having a value in excess of $100, knowing them to have been stolen from an interstate shipment, in violation of 18 U.S.C. § 659; he was found not guilty of conspiracy to commit the theft, in violation of 18 U.S.C. §§ 659, 371. Carpenter was found guilty on each of the five counts in which he was charged. A joint appeal was taken, but the appeal as to Carpenter was dismissed on his own motion. Walker raises five issues for our consideration. Finding each of them to be without merit, we affirm his conviction.

First, Walker contends that the trial court erred in denying his motion to sever the possession count against him from the remainder of the indictment. The evidence contained in the record, however, shows sufficient connection between the substantive possession count charged against Walker and the offenses charged in the other counts of the indictment against him and Carpenter. See Fed.R.Crim.P. 8; Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960); United States v. Pacheco, 5 Cir., 1974, 489 F.2d 554, 559-560; Ingram v. United States, 4 Cir., 1959, 272 F.2d 567, 570. The district court, moreover, did not abuse its discretion by refusing to grant a severance on the ground of prejudicial joinder under Fed.R.Crim.P. 14. See United States v. Green, 5 Cir., 1974, 494 F.2d 820, 828; Tillman v. United States, 5 Cir., 1969, 406 F.2d 930, 933-935, vacated as to one defendant on other grounds, cert, denied as to other defendants, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742.

Walker’s second contention is that the evidence in the record is insufficient to sustain the jury’s verdict of guilty as to the possession count. We disagree. The jury was presented with ample evidence from which it could conclude that Walker was in possession of stolen merchandise valued at more than $100, knowing it to have been stolen. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680; United States v. Green, supra,, at 824-825.

Walker next argues that the trial court abused its discretion by allowing the Government to cross-examine Walker as to his prior felony conviction. The Government’s inquiry, however, was for the purpose of impeachment, and the jury was instructed that the inquiry might be considered only to the extent it affected the credibility of Walker as a witness. In this context, the inquiry was appropriate. See Hayes v. United States, 5 Cir., 1969, 407 F.2d 189, 193-194, cert. dismissed, 395 U.S. 972, 89 S.Ct. 2133, 23 L.Ed.2d 777; Whalen v. United States, 5 Cir., 1966, 367 F.2d 468, 470.

Walker’s fourth contention is that the trial court erred in admitting testimony by a Government agent as to an attempted sale of other merchandise from the same interstate shipment that was the subject of the indictment. The attempted sale took place on a date subsequent to the possession offense of which Walker was convicted. The event was alleged as one of the overt acts pertaining to the conspiracy. Evidence of other crimes with which a defendant is not charged is admissible to establish essential elements of the crimes charged, to show a single scheme or common pattern of illegal conduct. See United States v. Bryant, 5 Cir., 1974, 490 F.2d 1372, 1377; United States v. Marine, 7 Cir., 1969, 413 F.2d 214, 216-217, cert. denied, 396 U.S. 1001, 90 S.Ct. 550, 24 L.Ed.2d 493 (1970). The testimony of the Government agent was admissible because it showed that Walker knew that the merchandise he possessed was stolen. See Turner v. United States, 6 Cir., 1970, 426 F.2d 480, 483-484, cert. denied, 402 U.S. 982, 91 S.Ct. 1646, 29 L.Ed.2d 148 (1971).

Walker’s final contention is that the trial court was not justified in sentencing Walker to confinement for a period of five years. The prescribed range of punishment for Walker's crime is a fine of not more than $5,000 and/or imprisonment of not more than ten years. 18 U.S.C. § 659. Under the facts and circumstances of this case, we cannot say that the trial court abused its broad discretion in sentencing Walker to five years’ imprisonment. See United States v. McGhee, 5 Cir., 1974, 488 F.2d 781, 786; White v. United States, 5 Cir., 1964, 330 F.2d 993; 2 C. Wright, Federal Practice and Procedure § 526, at 407 (1969, Supp.1973); Fed.R.Crim.P. 35.

We have considered all of Walker’s contentions and find them to be without merit.

Affirmed.