author: ENGEL, Circuit Judge. McCREE, Circuit Judge

text:
    Henry Clay BURKS, Petitioner-Appellant, v. Charles EGELER, Warden, People of the State of Michigan, Respondents-Appellees.
    No. 73-2003.
    United States Court of Appeals, Sixth Circuit.
    Feb. 6, 1975.

      Henry Clay Burks, pro se, William J. Dammarell, Cincinnati, Ohio (Court Appointed), for petitioner-appellant.
    Frank J. Kelley, Atty. Gen. 'of Mich., Robert A. Derengoski, Thomas A. Carlson, Jann C. Ryan, Lansing, Mich., for respondents-appellees.
    Before PHILLIPS, Chief Judge, and McCREE and ENGEL, Circuit Judges.
   ENGEL, Circuit Judge.

Henry Clay Burks, originally charged with second degree murder, was convicted of manslaughter by a Detroit Recorder’s Court jury on July 25, 1968, and sentenced to a term of ten to fifteen years in prison. Following denial of a motion for new trial, Burks’ conviction was affirmed by the Supreme Court of Michigan.

In a petition to the district court for writ of habeas corpus under 28 U.S.C. § 2254, Burks alleged eight issues, but after careful examination of the record in the state proceedings, the district judge considered only two issues on the merits, properly refusing to rule on the remainder because Burks had failed to exhaust his state remedies as to them. The trial judge found no merit in the two issues on which Burks had exhausted his state remedies. We agree and affirm.

Appellant’s conviction arose out of a brawl at Gene’s Bar on East Jefferson Avenue in Detroit on March 19, 1968. Burks and the deceased, Christy Earls, had entered the bar shortly before eleven p. m. and Earls soon became involved in a dispute with another patron, one LaFleure. During the course of the ensuing scuffle, Earls was shot in the upper left thigh, the bullet completely severing the femoral vein and partially severing the femoral artery. Earls bled to death and Burks was charged with second degree, or unpremeditated, murder.

At the trial it was the state’s contention that Burks had fired the fatal shot, intending it, however, for LaFleure and not for Earls. Burks denied firing the shot. He claimed instead that Earls was in possession of the gun at the time of the scuffle and that the wound was self-inflicted when the gun went off accidently as Earls sought to hit LaFleure with the butt end of it.

Burks claims that he was wrongfully precluded from introducing evidence of the prior criminal record of Earls, for the purpose of showing that a man with such a record would more likely be in possession of the pistol, thus corroborating Burks’ self-inflicted wound theory. Admissibility of evidence in a state trial does not normally raise constitutional questions unless it impugns fundamental fairness. Gemmel v. Buchkoe, 358 F.2d 338 (6th Cir. 1966), cert. denied 385 U.S. 962, 87 S.Ct. 402, 17 L.Ed.2d 306, reh. denied 385 U.S. 1021, 87 S.Ct. 723, 17 L.Ed.2d 561. We agree with the district judge that no constitutional issue was presented here, and note that in any event the defense succeeded in getting the desired information before the jury by other evidence.

Finally, Burks claims that he was denied his Fourteenth Amendment right to due process because his conviction was based upon perjured testimony and because certain witnesses whom he had intended to call failed to show up at the trial after being threatened. In proof thereof, he submitted a number of affidavits in support of his motion for a new trial, made to the state trial judge more than a year after his conviction. Burks’ counsel brought some of the affiants to the hearing and while the judge declined to take their testimony, he indicated a complete familiarity with the contents of the affidavits, and Burks’ counsel indicated that if called, the witnesses would “re-testify to what they have put in their affidavits.” The state trial judge, in denying the motion, displayed a healthy skepticism concerning the reliability of the affidavits, and commented:

“Now notwithstanding this information, if true, has been known to this defendant for this extended period of time, there is no indication that such illegal conduct was ever reported to the Wayne County Prosecutor.”

On appeal to the Michigan Court of Appeals, that court stated:

“Such information as contained in the affidavits is asserted to be in the nature of new evidence. Such evidence, if newly discovered, can form the basis for the granting of a new trial if it meets with the requirements as set out in People v. Keiswetter (1967), 7 Mich. App. 334, 151 N.W.2d 829. Such determination is directed to the sound discretion of the trial court. People v. Nickopoulous (1970), 26 Mich.App. 297, 182 N.W.2d 83. The trial court has denied defendant’s motion for a new trial. Giving due regard to the superi- or opportunity of the trial court to appraise the credibility of the trial witnesses and the several affiants, we cannot say that the court abused its discretion in denying defendant’s motion.” People v. Burks, supra, 30 Mich.App. 102, 186 N.W.2d 18, at p. 19 (1971).

Thus Michigan courts recognize, as does the federal system, that the decision to grant a new trial is usually addressed to the sound discretion of the trial court, Rule 33, Federal Rules of Criminal Procedure; U. S. v. Sposato, 446 F.2d 779 (2nd Cir. 1971).

The thrust of the affidavits presented and considered by the state courts and by the district court here was that one Joseph Golden, who testified at trial on behalf of the prosecution, succeeded, by threat of bodily harm, in persuading certain witnesses either to avoid testifying or to perjure the testimony they gave. Golden’s motive, it is claimed, was a mistaken belief that his sister might be the beneficiary of double indemnity insurance on Earl’s life if it were shown that the death wound was not self-inflicted.

In Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935), the Supreme Court, while denying relief on other grounds, made it clear that the Fourteenth Amendment right to due process prohibits a knowing and deliberate use by a state of perjured evidence in order to obtain a conviction. And in Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967), federal habeas corpus was extended to protect the petitioner where it appeared that the prosecution in the state court had deliberately represented to the court and jury that certain stains on the victim’s clothing were blood when it knew they were in fact paint.

“More than 30 years ago this Court held that the Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence. Mooney v. Holohan, 294 U.S. 103 [55 S.Ct. 340, 79 L.Ed. 791]. There has been no deviation from that established principle. Napue v. People of State of Illinois, 360 U.S. 264 [79 S.Ct. 1173, 3 L.Ed.2d 1217]; Pyle v. State of Kansas, 317 U.S. 213 [63 S.Ct. 177, 87 L.Ed. 214]; cf. Alcorta v. Texas, 355 U.S. 28 [78 S.Ct. 103, 2 L.Ed.2d 9]. There can be no retreat from that principle here.” Miller v. Pate, supra, at p. 7, 87 S.Ct. at p. 788.

Mooney v. Holohan, supra, emphasized that it was the knowledgeable and deliberate use of the perjured evidence which constituted the constitutional infringement. In other words, it is “state action” which lies at the heart of the violation:

“Such a contrivance by a state to procure the conviction and imprisonment' of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation. And the action of prosecuting officers on behalf of the state, like that of administrative officers in the execution of its laws, may constitute state action within the purview of the Fourteenth Amendment. That amendment governs any action of a state, ‘whether through its legislature, through its courts, or through its executive or administrative officers.’ Carter v. Texas, 177 U.S. 442, 447 [20 S.Ct. 687, 689, 44 L.Ed. 839]; Rogers v. Alabama, 192 U.S. 226, 231 [24 S.Ct. 257, 48 L.Ed. 417]; Chicago, Burlington & Quincy R. Co. v. Chicago, 166 U.S. 226, 233, 234 [17 S.Ct. 581, 41 L.Ed. 979].” Mooney v. Holohan, supra, 294 U.S. at 112, 113, 55 S.Ct. at 342.

In subsequent decisions addressed to the due process issue, the Supreme Court has consistently noted the presence of impermissible state involvement in the untruthful testimony, e. g., Miller v. Pate, supra. In Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942), the allegation was that the perjured testimony was induced by threats from local authorities of a penitentiary sentence, and that there was knowing use of the perjured testimony as well as deliberate suppression of favorable evidence. In Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957), while the perjury was not claimed to have been procured, it was known to have existed when given at the trial. There, the defendant was accused of murdering his wife, and claimed in defense that he did so in a fit of sudden passion aroused when he discovered his wife, already suspected of infidelity, kissing one Castilleja late at night in a parked car. The government, knowing of illicit intercourse between Castilleja and the wife, nevertheless suffered Castilleja to testify falsely that the relationship had been nothing more than one of casual friendship. In Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), the Supreme Court held that due process had been denied where the prosecution knowingly and without correction elicited false testimony that no promise of leniency had been given in exchange for the testimony of a prosecution witness. At the same time, Napue pointedly referred to “[t]he principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction . . . ”, 360 U.S. at 269, 79 S.Ct. at 1177.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), it was held that suppression by the prosecution of evidence requested by the accused and favorable to him violated due process where the evidence is material either to guilt or punishment. Irrespective of the good faith or bad faith of the prosecution, the Court found that the existence of the evidence was nevertheless knowingly and deliberately concealed. And in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), one Taliento, an unindicted but named co-conspirator was the only witness linking defendant Giglio with the crime of passing forged money orders. On cross-examination, Taliento denied any promises of leniency and the government attorney affirmatively stated that he received no promises that he would not be indicted. Unknown to the trial attorney, the testimony was false, for in fact a promise of leniency had been made by an assistant. This was held sufficient to constitute a violation of due process because, “whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. TI e prosecutor’s office is an entity and as such it is the spokesman for the Government”. Giglio, supra, at 154, 92 S.Ct. at 766. Again, it was government action and responsibility which lay at the heart of the violation.

It can, of course, be argued that if a man is convicted in a trial into which perjury has intruded, it matters little to him who was or was not involved in it. It can also be argued with great force that in a trial which is close on its facts and hotly disputed, even the slightest error can make the difference between acquittal and conviction. The distinction between that which constitutes state action under Holohan and that which does not, however, still has validity as marking the borderline of federal constitutional involvement. Deviations from the perfect case, perfectly tried will inevitably occur in both the federal and state judicial systems, and each can in most instances be expected to supervise itself, guided by proper judicial considerations for the protection of persons accused of crime.

“Upon the state courts, equally with the courts of the Union, rests the obligation to guard and enforce every right secured by that Constitution.” Holohan, supra, 294 U.S. at p. 113, 55 S.Ct. at 342.

Due process is concerned with “minimal historic safeguards for securing trial by reason”, McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 613, 87 L.Ed. 819 (1943). It does not guard against all error.

“What it [due process] does require is that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions and not infrequently are designated as ‘law of the land’.” Hebert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270 (1926).

Thus we frequently find that certain errors, or circumstances so alleged, may and do properly suggest correction in both the state and federal judicial systems without rising to the level of constitutional issues, see.e. g., McNabb v. United States, supra; United States v. Augenblick, 393 U.S. 348, 356, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969). We conclude that such is the circumstance here.

In contrast to direct appellate review of cases originally tried in a federal court, where non-constitutional error can be and is often corrected, habeas corpus relief can only be afforded where the error claimed to have been committed in the state court system is one of federal constitutional dimensions. In Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956), the Supreme Court was confronted by the admission of the Solicitor General, following conviction of petitioners under the Smith Act, that a paid government informer, one of seven witnesses for the government in the case, had subsequently and in another case given testimony which the Solicitor had serious reason to believe was untrue. At the same time, the Solicitor maintained before the Court his belief that there, had been no actual perjury in the case at bar. Thus, if the testimony was indeed false, there was no claim or showing that the government knew it when it was offered, or in any way induced it. Because the facts are so similar to those here, and perhaps stronger because the suspect witness was a paid informer, we believe it is significant that the Supreme Court, while remanding for new trial, took particular pains to do so on the non-constitutional basis of its “supervisory jurisdiction over the proceedings of the federal courts”, with pointed reference to McNabb, 352 U.S. at 14, 77 S.Ct. at 8.

A requirement of state involvement as a prerequisite to finding constitutional error has also been the ■ understood rule in other circuits.

All of this long standing and consistent authority would appear to make our task here simple except for Jones v. Commonwealth of Kentucky, 97 F.2d 335 (6th Cir. 1938).

In Jones, the petitioner for habeas corpus and for writ of coram nobis relief was convicted of the murder of his wife and sentenced to death by a Kentucky state court. He had fully exhausted all of his local remedies, but without success, even though he alleged that his conviction was procured by perjured testimony. Like Burks here, Jones who was charged with having shot and killed his wife with a pistol, claimed that the pistol was discharged in a scuffle for its possession when the wife threatened her own life. While we are not specifically told what new evidence was presented to the Kentucky court, except for a suggestion of the unreliability of two eye witnesses, including the possible duress of one of them, the Attorney General of Kentucky himself was “strongly inclined to the view that Tom Jones was convicted on perjured testimony”. The Court of Appeals of Kentucky indicated “sympathy for him, because of his unfortunate predicament”, (Jones v. Commonwealth, 267 Ky. 465, 102 S.W.2d 345, at 351-352 [1937]), but accorded no relief. Likewise, the district judge was himself convinced that the conviction was procured by perjured testimony. This court granted habeas corpus:

“The concept of due process as it has become crystallized in the public mind and by judicial pronouncement, is formulated in Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 341, 342, 79 L.Ed. 791, 98 A.L.R. 406. Its requirement in safe-guarding the liberty of the citizen against deprivation through the action of the state embodies those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions,’ referred to in Hebert v. Louisiana, 272 U.S. 312, 316, 317, 47 S.Ct. 103, 71 L.Ed. 270, 48 A.L.R. 1102. This requirement cannot be satisfied ‘By mere notice and hearing if a state has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a state to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.’ If it be urged that the concept thus formulated but condemns convictions obtained by the state through testimony known by the prosecuting officers to have been perjured, then the answer must be that the delineated requirement of due process in the Mooney Case embraces no more than the facts of that case require, and that ‘the fundamental conceptions of justice which lie at the base of our civil and political institutions’ must with equal abhorrence condemn as a travesty a conviction upon perjured testimony if later, but fortunately not too late, its falseness is discovered, and that the state in the one case as in the other is required to afford a corrective judicial process to remedy the alleged wrong, if constitutional rights are not to be impaired.” Jones v. Commonwealth of Kentucky, supra, 102 S.W.2d at 338.

If Jones v. Commonwealth is construed to spell out a general rule in this circuit that the intrusion into a state trial of perjured evidence is sufficient without more to constitute a due process violation, we would be compelled at a miminum to determine whether the district court erred in refusing to hold an evidentiary hearing on the perjury issue. Curiously, however, while Jones v. Commonwealth has frequently been noted elsewhere, it has been largely neglected by the courts within the Sixth Circuit.

At least two of the district courts within this circuit have encountered this problem and both have resolved it in accordance with the majority rule and completely without reference to Jones v. Commonwealth.

In Kowalak v. Frisbie, 93 F.Supp. 777 (E.D.Mich.1950), District Judge Thomas P. Thornton relied upon Tilghman v. Hunter, 167 F.2d 661 (10th Cir. 1948), and the other Tenth Circuit cases to like effect, to deny habeas corpus relief:

“The entire petition in support of petitioner’s application for a writ of habeas corpus is barren of any allegation that the alleged perjured testimony was knowingly, wilfully, and intentionally used to secure a conviction, and is further barren of any allegation that the prosecuting authorities or the presiding trial judge knew that the witnesses were perjuring themselves, and the absence of such allegations forecloses this Court from granting the relief prayed for in the petition filed herein so, therefore, the application for a writ of habeas corpus is hereby denied.” Kowalak v. Frisbie, supra, 93 F.Supp. at 778.

More recently, the same problem was before Chief Judge Frank W. Wilson of the Eastern District of Tennessee in Hoffa v. United States, 339 F.Supp. 388 (E.D.Tenn.1972). Without reviewing the complicated history of that case, suffice it to say that at the time in question, Judge Wilson had before him a motion for new trial filed on behalf of petitioner Hoffa. In his petition Hoffa relied upon the principle that the “Government may not knowingly use false testimony to obtain a criminal conviction”, citing Napue v. Illinois, supra. Judge Wilson reviewed the allegations of perjury which were made in the petition and found that there was no basis for the charge of knowing use of perjured testimony by the government. Hoffa v. United States, supra, 339 F.Supp. at 398.

In treating knowledge by the government as an essential element in establishing a denial of due process, Judge Wilson observed:

“A matter to note at this point, however, is that it is the knowing use by the Government of false evidence that constitutes the denial of due process. An allegation of perjury, apart from an allegation of knowing use by the Government of that perjury, constitutes no basis for habeas corpus or coram nobis relief as it alleges no error of constitutional dimensions. The credibility of witnesses is ordinarily for trial by the jury in the criminal trial. False evidence and perjury are matters that may be raised on the trial and on motions for a new trial, but not in habeas corpus, Section 2255, or other post-conviction petitions. Otherwise every criminal conviction other than a plea of guilty would be subject to repetitious retrial on post-conviction petitions long after the criminal trial had occurred and long after time had erased both memories and witnesses, for few persons convicted of crime do not contend that something untrue was said in their trial.” Hoffa v. United States, supra, 339 F.Supp. at 392-393.

While the opinions of the district courts within the circuit are of great value, they cannot be said to be precedent controlling upon this court. However, in its affirmance of Judge Wilson’s decision, this court in Hoffa v. United States, 471 F.2d 391 (6th Cir. 1973), at page 393, expressly stated “As to the allegations of perjury, we affirm for the reasons stated by Judge Wilson. 339 F.Supp. 392-399.”

We believe it is significant as well that even the dissent in that case, as well as in the previous appeal, United States v. Hoffa, 437 F.2d 11 (6th Cir. 1971), went not to the principles set forth by Judge Wilson and adopted by the majority, but to whether Napue v. Illinois, supra, required a remand for an evidentiary hearing to determine “whether the Government knowingly used perjured testimony in the original trial.” United States v. Hoffa, 437 F.2d at 19.

We do not conclude that it is necessary for us to overrule Jones v. Commonwealth, supra. An examination of the facts in that case would convince us even as it did that court that the petitioner’s right to Fourteenth Amendment due process had, indeed, been violated. It must be true now, as we believe it always has been true, that particular rules which assist courts in the day-today application of the principles of due process must from time to time give way where they themselves are inconsistent with the overriding concepts of due process as set forth in Hebert v. Louisiana, supra, 272 U.S. at 316, 47 S.Ct. at 104:

“ . . the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions . . . ”

Thus, while we are unable to approve the precise language quoted, supra, from Jones, as a continuing guideline, it by no means follows that the court in that case erred in granting relief, especially where there appeared to be a governmental confession of error, but no machinery within the state system by which to repair it.

The D. C. Circuit was confronted with this same problem in Hodge v. Huff, 78 U.S.App.D.C. 329, 140 F.2d 686 (1944). In that case the court, while recognizing the urgency of the unique circumstances in Jones, declined to adopt its result as a general rule for habeas corpus cases involving allegations of perjury. Noting that in Jones, (1) the prisoner was under the sentence of death, (2) strong evidence of perjury was produced, (3) the prosecution confessed error, (4) the door of executive clemency had been closed, and (5) that more effective assistance of counsel might have uncovered the perjury, the court in Huff stated:

“Whether or not that decision was proper upon its facts, it finds no counterpart in the present case.” 140 F.2d at 688.

The D. C. Circuit went on to approve, as the general requirement, the necessity of a showing of prosecutorial involvement in .the perjury.

We agree.

Since the issue presented to the district court was one addressed to the discretion of the state trial judge and to the appellate courts of Michigan, and did not present a denial of the right to due process under the Fourteenth Amendment, it was not necessary for the district judge to have held an evidentiary hearing. Neither is it necessary for us to determine the adequacy under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), or under 28 U.S.C. § 2254(d) of the post-trial fact finding procedures of the state court. The issue before him was discretionary and not constitutional.

“Where newly discovered evidence is alleged in a habeas application, evidence which could not reasonably have been presented to the state trier of facts, the federal court must grant an evidentiary hearing. Of course, such evidence must bear upon the constitutionality of the applicant’s detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus. Also, the district judge is under no obligation to grant a hearing upon a frivolous or incredible allegation of newly discovered evidence.” Townsend v. Sain, supra, at 317, 83 S.Ct. at 759.

Accordingly the judgment of the district court is affirmed.

McCREE, Circuit Judge

(dissenting).

I respectfully dissent, and I would reverse the judgment of the district court and remand the case for an evidentiary hearing on the question whether the defense witnesses were so terrorized in the courthouse that they perjured themselves or refused to testify because of fear for their safety. The affidavit of trial defense counsel states that he was made aware of the threats made by a prosecution witness and that he communicated this fact to the trial judge. The affidavits of several intended defense witnesses that their lives were threatened if they dared to testify and that they did not testify out of fear, or testified falsely, support defense counsel’s affidavit. According to some of the affiants, they had been sworn as witnesses, and during a recess of the trial, were approached and terrorized outside the very door of the courtroom in which the trial was in progress. Others were threatened before they testified and some were so terrified that they left the courthouse and did not testify.

If these representations are true, there can be no doubt that there was a denial of the fundamental fairness guaranteed by the Fourteenth Amendment. Persons who attend our courts for the purpose of testifying must be protected from terror in the corridors. See Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923). Since this issue was presented to and rejected by the state courts without a hearing, People v. Burks, 30 Mich.App. 102, 186 N.E.2d 18 (1970), the district court should have held an evidentiary hearing to see whether these incidents occurred and whether the state trial judge took appropriate measures to safeguard witnesses in the courthouse. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

      . People v. Burks, 30 Mich.App. 102, 186 N.W.2d 18 (1971); People v. Burks, 387 Mich. 393, 196 N.W.2d 777 (1972).

      . The eight claimed violations were:
      1. The selection of jurors violated petitioner’s rights to a fair trial.

        2. There was tampering with witnesses that further deprived him of a fair trial.
      3. There was an erroneous refusal by the trial judge of introduction of evidence pertaining to the past record of petitioner’s victim.
      4. The trial judge erred in his instructions to the jury as to the credibility of certain witnesses, thereby prejudicing the jury.
      5. A witness for the state testified falsely.
      6. That all judicial officers from the court reporter to the Chief Justice of the Michigan Supreme Court practiced financial and racial discrimination against petitioner in denying him his trial record for appeal.
      7. That the trial judge abused his discretion in denying petitioner’s motion for a new trial without hearing petitioner’s witnesses.
      8. That all of the judicial proceedings in which petitioner has been involved in thus far evidence a “corrupt Judicial System,” for the above stated reasons.

      . The record shows that Burks deliberately determined not to subpoena those witnesses because the subpoena “would have an adverse effect on them.” The trial judge denied a request for two days’ adjournment to locate the witnesses, but did postpone trial that day for two hours for that purpose.

      . Smith v. United States, 358 F.2d 683 (3rd Cir. 1966), holding that the absence of an allegation of government knowledge is a fatal defect to a petition under 28 U.S.C. § 2255. Sessions v. Manning, 227 F.2d 324 (4th Cir. 1955); Luna v. Beto, 395 F.2d 35 (5th Cir. 1968); Purkhiser v. Wainwright, 338 F.Supp. 369 (S.D.Fla.1972), affirmed 455 F.2d 506 (5th Cir. 1972). Of particular interest is Luna v. Beto, supra, where the Fifth '“'rcuit sitting en banc, considered whether, upon the record before it, perjury had been committed and the extent of state complicity. While the facts in Luna v. Beto, supra, sound suspiciously like Giglio, the concurring opinion of Chief Judge John R. Brown, joined in by Circuit Judges Gewin, Bell, Thornberry, Coleman, Ainsworth, Simpson and Clayton, made the following comment;
      “The dissenting opinion deplores what it senses is undue emphasis by the Court on the so-called technicalities of perjury, presumably Texas peculiarities, even though its concepts seem to be those everywhere held. But for an otherwise valid state conviction to be upset years later on federal habeas, surely something more than an evidentiary mistake must be shown. If mistake is enough, then never, simply never, will the process of repeated, prolonged, postconviction review cease. For in every trial, or at least nearly every trial, there will be, there are bound to be, some mistakes.
      “What elevates the ‘mistake’ to a constitutional plane is at least twofold. First, the mistake must be material in the sense of a crucial, critical, highly significant factor. Second, it must have some State complicity in it. As to this, I do not for a moment think innocence of the prosecutor is an assured out. For Barbee [sic Barbee v. Warden, 331 F.2d 842 (4th Cir. 1964)] properly teaches that the police are very much a part of the State and its prosecutorial machinery. But someone in the state machinery must have some awareness that testimony being palmed off as the gospel is something else indeed.” Luna v. Beto, supra, 395 F.2d at 40-41.
      See also Geach v. Olsen, 211 F.2d 682 (7th Cir. 1954); Marcella v. United States, 344 F.2d 876 (9th Cir. 1965). Wagner v. Hunter, 161 F.2d 601 (10th Cir. 1947), is frequently cited and the issue seems to have risen often in the Tenth Circuit. See Tilghman v. Hunter, 167 F.2d 661 (10th Cir. 1948); Story v. Burford, 178 F.2d 911 (10th Cir. 1949); Lister v. McLeod, 240 F.2d 16 (10th Cir. 1957). As stated in Wagner v. Hunter, supra, 161 F.2d at 602,
      “Taking petitioner’s own testimony at par, the most that can be said for it is that it shows that some of the witnesses gave false testimony. But even if this be true, it does not void the judgment. The vice which will vitiate the judgment of a court is the knowing, wilful and intentional use of perjured testimony in a trial to secure a conviction.”

      . See, for example dissent in United States v. Hendricks, 213 F.2d 922, 943 (3rd Cir. 1954); United States v. Walsh, 174 F.2d 49, 59 (7th Cir. 1949); United States v. Ragen, 86 F.Supp. 382, 390 (N.D.Ill.1949). In Imbler v. Craven, 298 F.Supp. 795 (C.D.Cal.1969), United States District Judge Warren J. Ferguson dealt at length and favorably with Jones v. Commonwealth, supra, while recognizing that the current law in the Ninth Circuit is to the contrary and “that ‘knowledge’ by the prosecution is required to support a claim of denial of due process based upon the existence of prejudicial perjured testimony in a criminal trial”, Imbler, supra, 298 F.Supp. at p. 805. Judge Ferguson also recognized, as we have earlier, that Mesarosh v. United States, supra, was based upon supervisory powers of federal courts rather than constitutional due process requirements.
      Jones v. Commonwealth, supra, was cited by Circuit Judge William E. Miller, sitting by designation in the United States District Court for the Middle District of Tennessee, in Leighton v. Neil, 317 F.Supp. 959 (1970), but the specific issue of perjured testimony was not present in that case and Judge Miller noted particularly “that evidence given by the state’s attorney general was afforded great weight by both the district judge and the Sixth Circuit”. 317 F.Supp. at 961. See also Sharpe v. Commonwealth, 135 F.2d 974 (6th Cir. 1943), wherein Judge Simon discussed Jones v. Commonwealth noting that Jones involved “exceptional circumstances, of peculiar urgency”. In Sharpe, the issue of perjured testimony was not present, and the Jones holding in that regard was neither overruled nor reaffirmed.


source: Caselaw Access Project

author: KOELSCH, Circuit Judge:

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ASSOCIATED SHOWER DOOR CO., INC., et al., Respondent.
    No. 74-1033.
    United States Court of Appeals, Ninth Circuit.
    Feb. 24, 1975.

      Abigail Cooley, of N.L.R.B. (argued), Washington, D. C., for petitioner.
    Norman H. Kirshman (argued), Gold-stein, Gentile & Kirshman, Beverly Hills, Cal., for respondent.
    Before CHAMBERS and KOELSCH, Circuit Judges, and JAMESON, District Judge.

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

   OPINION

KOELSCH, Circuit Judge:

The National Labor Relations Board seeks enforcement of its order against Associated Shower Door Co., Inc., and Century Shower Door Company, Inc. (the Companies), upon the Board’s findings that the Companies violated section 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5) and (1). The Board’s decision and order are reported at 205 N.L.R.B. No. 95 (1973).

Briefly, the relevant facts are as follows: In August, 1971, a multi-employer bargaining unit of which the Companies were members (the Association) and the certified representative of certain employees of Association members (the Union) commenced collective bargaining. The negotiations reached an impasse on September' 15, 1971, and the following day the Union called a strike against all Association members. Thereafter, between September 17 and September 23, 1971, three Association members other than the Companies individually negotiated agreements with the Union, and a fourth member withdrew from the Association without objection.

Early in October, the Companies and one other Association member each formally notified, in writing, the Association and the Union of its withdrawal from the Association. However, a Union attorney informed each of these employers that the Union viewed the attempted withdrawals as untimely and would consider the employers bound by any agreement subsequently reached between the Union and the Association.

On October 19, 1971, the Union and the Association met again; representatives of both Companies were present at this meeting. And on November 1, 1971, when the Association members met among themselves to draft new proposals, representatives of Century were present.

About November 11, 1971, the Association’s president, Herman Propker, executed an agreement with the Union, purportedly on behalf of the Association. The Companies’ alleged violations of section 8(a)(5) and (1) of the Act are predicated on their failure to accept and comply with the terms of that agreement.

The Board initially takes the position that the Companies’ withdrawals were ineffective because, once collective bargaining involving a multi-employer unit has begun, neither the employer group nor an individual employer nor the union may withdraw from such bargaining without the consent of the opposing party, absent unusual circumstances. See NLRB v. Brotherhood of Teamsters, etc., Local No. 70, 470 F.2d 509, 509-510 (9th Cir. 1972), cert. denied 414 U.S. 821, 94 S.Ct. 117, 38 L.Ed.2d 54 (1973); NLRB v. Hart, 453 F.2d 215, 217-218 (9th Cir. 1971), cert. denied 409 U.S. 844, 93 S.Ct. 46, 34 L.Ed.2d 84 (1972); NLRB v. Strong, 386 F.2d 929, 931 (9th Cir. 1967), cert. denied 390 U.S. 920, 88 S.Ct. 853, 19 L.Ed.2d 980 (1968); NLRB v. Jeffries Banknote Co., 281 F.2d 893, 896 (9th Cir. 1960); Retail Associates, Inc., 120 N.L. R.B. 388 (1958). We decline to enforce on this basis under the circumstances of this case.

The Board has held that a union which has commenced collective bargaining with a multi-employer unit may withdraw from the multi-employer unit with respect to one or more employers while continuing multi-employer bargaining with those employers remaining in the multiple unit. Pacific Coast Association of Pulp and Paper Manufacturers, 163 N.L.R.B. 892, 895-896 (1967). Since the Board has committed itself to preserving the equality of withdrawal rights in the multi-employer unit situation, see The Evening News Association, 154 N.L.R.B. 1494, 1495-1497 (1965), enforced sub. nom. Detroit Newspaper Publishers Association v. NLRB, 372 F.2d 569, 572 (6th Cir. 1967), it seems only fair that, when an impasse is reached and a union then engages in selective picketing and enters into substantial individual agreements with employers who had been members of the multiemployer unit, the withdrawal of the remaining members of the unit, if unequivocally communicated, should be permitted. See NLRB v. Hi-Way Billboards, Inc., 500 F.2d 181, 183-184 (5th Cir. 1974); Fairmont Foods Company v. NLRB, 471 F.2d 1170, 1172-1174, 1174 n. 1 (8th Cir. 1972); Connell Typesetting Company, 212 N.L.R.B. No. 140 (1974). Were the rule otherwise, a union could reach an agreement with one or more employers and then whipsaw the remaining members of the significantly fragmented and weakened multi-employer unit. See Hi-Way Billboards, supra, at 183; Connell Typesetting, supra, slip-opinion at 9 — 11. Here the Companies were entitled to, and did by clear written notice, withdraw from the Association.

The Board next contends that, even if the withdrawals were effective when tendered, the subsequent conduct of the Companies constituted a retraction of those withdrawals and “reestablished], through either actual or apparent authority, an agency relationship with the representatives who had formerly represented the old multi-employer unit.” We agree.

The relevant findings of the Administrative Law Judge, accepted by the Board, are as follows:

“I find on the basis of Geffner’s testimony, corroborated by Propker and Robin, that Treasurer Siegel of Century and Siefert of Associated attended and participated in the negotiations between the Association and the Union, discussed the terms of the Union’s proposals and the Association’s counter-proposals, assisted in the preparation of the latter, and at no time informed the Union negotiators they were in a capacity other than as representatives of the Association. I further find and conclude, on the basis of the foregoing, that Siegel and Siefert attended and participated in the October 19 Association-Union negotiations as representatives of the Association.
“It is clear that Associated [and] Century . . . tried to secure the best of two worlds; by continuing in the negotiations between the Association and the Union following their October withdrawal, they attempted to secure terms to their satisfaction; by filing a purported withdrawal from the Association, they attempted to preserve an opportunity to reject any Association-Union agreement if dissatisfied therewith and to bargain for better terms in individual negotiations.
“I find, however, that by their appearance and participation in the Association-Union negotiations after service upon the Union of their October 3-5 withdrawal] notices, Associated [and] Century . . . retracted their withdrawals from multi-employer bargaining and accepted the Union’s October 8 objection to their withdrawal and its insistence upon their remaining in and bound by the results of the multi-employer bargaining which occurred subsequent to their October withdrawal.”

We have carefully reviewed the record in light of the standard enunciated by the Supreme Court in Universal Camera Corp. v. NLRB, 340 U.S. 474, 490-497, 71 S.Ct. 456, 95 L.Ed. 1372 (1951), to ascertain whether these findings are supported by substantial evidence on the record as a whole. The question is a close one, but, since the propriety of the findings turns in large part on the Administrative Law Judge’s estimation of the credibility of witnesses and concerns matter peculiarly within the expertise of the Board, we conclude that the findings are supported by substantial evidence on the record as a whole.

The Companies’ remaining contentions are without merit.

The Board’s order will be enforced.

      . Association of Shower Door Industries, Inc., which, at the time negotiations commenced, had ten employer-members.

      . Glaziers & Glassworkers Union Local 636, International Brotherhood of Painters and Allied Trades, AFL-CIO.

      . The Board employs language borrowed from the concurring opinion of Chairman Miller, with which we are in essential agreement. See 205 N.L.R.B. No. 95, slip-opinion at 4-5.

      . Under the circumstances, the Board’s reservation until the compliance stage of the proceedings of the resolution of any conflicts between the terms of the agreement and relevant wage and price freeze regulations, as well as the question of C.I.S.C. approval, was proper.


author: CHAMBERS, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Raymond Robert ZOCCOLA, Defendant-Appellant.
    No. 75-1200.
    United States Court of Appeals, Ninth Circuit.
    Feb. 13, 1975.
    Rehearing Denied July 31, 1975.

      William M. Coffey, Milwaukee, Wis., for defendant-appellant.
    William C. Smitherman, U. S. Atty., Tucson, Ariz., for plaintiff-appellee.
   OPINION

CHAMBERS, Circuit Judge:

Zoccola has been convicted in the district of Arizona of trafficking in heroin. On his trial, he was represented by a Wisconsin lawyer. The case was not in forma pauperis prior to conviction.

On appeal the district court approved a transcript at government expense under the Criminal Justice Act and appointed John Lindberg as Zoccola’s attorney for the appeal, also under the Criminal Justice Act. I take judicial notice of what I know personally: that Mr. Lind-berg is an outstanding attorney in the criminal field.

Now as the deadline for the appellant to file his brief arrives, Mr. Zoccola presents to the court S. Jeffrey Minker, of Tucson, another lawyer, to be substituted for the appeal. This might delay the appeal. I assume that Mr. Minker is quite competent.

Of course, ordinarily a man is entitled to an attorney of his own choice. The district court has denied the substitution none the less, and on application here I deny it without prejudice to further consideration on reapplication.

Here is what motivates the district court: Mr. Minker will be paid by a Miss Pat Mokma, described by Mr. Minker as Mr. Zoccola’s “girl friend.” She will pay Mr. Minker by giving him title to a vintage Cadillac admittedly worth $2,000 to $2,500. The district court is concerned about the government paying for the transcript in such circumstances after the defendant had represented to the court that he could not arrange to pay for either a lawyer or the transcript.

It is requested that the district court hold a further hearing and inquire into:

1. The history of any financial transactions between Miss Mokma and Mr. Zoccola.

2. What is a reasonable fee for Mr. Minker to charge for the appeal. Here the fee may be reasonable, but certainly the court can consider the reasonableness of the fee in deciding whether the government should pay for the transcript.

3. Did Mr. Zoccola know Miss Mokma and about her Cadillac at the time he represented to the court that he could not get private counsel.

Counsel has indicated Miss Mokma will pay for the transcript if this court says so. On the present record, I am not prepared to say so, although I think so. But if the district court still refuses after a further hearing, which at all events I desire, to permit the substitution, I will further consider the substitution matter.

Meanwhile, counsel are reminded that appellant’s opening brief is due here March 3, 1975, and this deadline must be met. I do not see how Mr. Minker could meet it when he says he has not yet opened a file on the case.

This court may have to consider revoking Mr. Zoccola’s bail if the deadline is not met.


author: BRIGHT, Circuit Judge.

text:
    Floyd E. CLARK, Appellant, v. A. L. LOCKHART, Superintendent, Cummins Unit, Arkansas Department of Correction, Appellee.
    No. 74-1692.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 8, 1975.
    Decided March 18, 1975.
    Robert A. Newcomb, Atty., for Inmates, Department for Correction, Pine Bluff, Ark., for appellant.
    Jack Lassiter, Asst. Atty. Gen., Little Rock, Ark., for appellee.
    Before BRIGHT, STEPHENSON, and WEBSTER, Circuit Judges.
   BRIGHT, Circuit Judge.

Floyd Clark brought a petition for habeas corpus to set aside a 1971 Arkansas conviction, entered upon his guilty plea to a charge of rape, and a sentence of 75 years’ imprisonment imposed by a jury impaneled to decide punishment. Clark appeals from the district court’s denial of relief. We affirm the judgment of the district court.

The appellant raises the following issues:

1) the state failed to prove that his plea of guilty had been entered knowingly, intelligently and with the competent advice of counsel;
2) the state trial procedures denied Clark due process of law because the trial judge advised the jury of the existence of parole eligibility under a sentence for a term of years; and
3) the federal district court in the habeas proceeding erred in receiving evidence by way of deposition rather than in open court.

We reject Clark’s first contention for the reasons enunciated by Chief Judge Henley in his memorandum opinion filed in the district court July 29, 1974. After a detailed review of the evidence, Judge Henley determined that the plea was entered voluntarily and understandingly, and that its acceptance by the Arkansas circuit court did not offend due process of law. We have carefully reviewed the record and conclude that it amply sustains Judge Henley’s determination.

Clark’s second contention, that he was deprived of due process of law because the jury was advised of his parole eligibility, poses a question of some difficulty and necessitates a review of the procedure under which the jury sentenced Clark.

Under Arkansas procedure, following a conviction for rape, a jury must decide the terms of the defendant’s sentence. Arkansas law prescribes punishment ranging from imprisonment for 30 years to death for first degree rape, Ark.Stat. Ann. § 41 — 3403 (Supp.1973). The prosecutor and the appellant entered into a plea bargain in which the state agreed that in return for a plea of guilty it would not ask for the death penalty. A jury was duly impaneled to hear the case and decide the sentence. Following Arkansas practice, the court instructed the jury before counsel for the parties orally argued. Over the objections of the defendant, the court instructed as follows:

The jury is instructed that under the law, as it now exists in Arkansas, anybody who is committed to the Department of Correction for a period of years will be eligible for parole after they have served one-third of their time and they, also, of course, by statute, are allowed what is known as “good time,” which is a premium they give them for good behavior.

Thereafter, during the course of argument, appellant’s counsel argued that the jury should impose the sentence for a term of years, limited to the minimum sentence of 30 years. In rebuttal argument, the prosecutor stated:

The defense lawyer tells us, well, thirty years is a long time, give him a number of years. Thirty years is a long time, yet we heard His Honor instruct us that under the law of Arkansas, and when you go in this jury-room remember this, under the law of Arkansas a man is subject to parole.

After the case had been submitted, the jury returned and the following colloquy occurred in open court:

THE COURT: Did the jury have some question they wanted to ask?
THE FOREMAN: Yes sir. In the determination, if a life sentence were given, what is the process for parole? What is the chance of parole? We understand where years are given that one-third, with good behavior, can be formulated to get the amount.
THE COURT: There is no provision for parole on a life sentence. Under the law a person who is serving a life sentence, before he can be paroled there must be a commutation of the sentence by the governor before he can be paroled. I can’t tell you what the experience shows to be the average time.
A JUROR: May I ask a question? Does there have to be some intercession with the governor for the man to get' a chance for commutation?
THE COURT: Yes, sir, the governor is the only one that can commute a life sentence to a term of definite years. Do you all understand that you may fix the punishment at either life imprisonment or a term of years, any number of years not less than thirty?
THE FOREMAN: Yes, sir, we understand that.
THE COURT: I believe that is about the best I can answer your question, Mr. Foreman. I can only tell you what the law is. I can’t tell you what the usual customs are, and what the experience shows them to be.
You may retire.

The jury then retired for further deliberation and thereafter returned to the courtroom to announce that it had set punishment at 75 years’ imprisonment.

Appellant asserts that the conduct of the state in requesting and receiving an instruction on parole eligibility was prejudicial and fundamentally unfair, in violation of the Due Process Clause of the fourteenth amendment. The Arkansas Supreme Court rejected this contention in its consideration of Clark’s petition for relief under state post-conviction procedures. That court had recognized that such an instruction would constitute trial error in its decision in Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971). In Andrews, the supreme court ruled that an instruction relating to parole eligibility would no longer be permissible but limited its ruling to prospective operation only. Id. at 92. Because the court decided Andrews after Clark’s sentencing trial, it held that the instruction challenged by Clark did not violate due process. Clark v. State, 255 Ark. 13, 498 S.W.2d 657, 662 (1973).

Appellant cites no authority for the proposition that an instruction relating to parole eligibility, when given to a jury such as this one, which is called upon only to impose sentence, rises to constitutional error. The issue is not free from doubt, however. The state courts, in considering an analogous matter, differ on whether giving similar instructions in a criminal case constitutes improper trial procedure. See Annots., 35 A.L.R.2d 769 (1954) and 12 A.L.R.3d 833 (1967).

The record in this case leads directly to the inference that the jury, by imposing a sentence of 75 years, intended that the defendant serve at least 25 years without eligibility for parole. The jury foreman’s comment to the judge makes this clear:

We understand where years are given that one-third, with good behavior, can be formulated to get the amount.

Sentencing juries in Arkansas have often made this kind of inquiry. See Andrews v. State, supra, 472 S.W.2d at 87 — 91.

It may be assumed that persons serving on a jury are generally aware that prisoners are often paroled prior to the expiration of prison terms. Without an instruction on the availability of parole, a jury aware of its availability but uncertain about its effect on a sentence is left to guess at how to set sentence to accommodate it. On the other hand, where the court gives an instruction as it has in this case, a jury may wander “far afield from its proper purpose and prerogative” in fixing punishment. Andrews v. State, supra, 472 S.W.2d at 92.

Without an instruction on the unavailability of parole with respect to life imprisonment and its availability with respect to a sentence for a term of years, it is possible that an Arkansas jury might impose a life sentence under the misapprehension that a prisoner serving a life sentence becomes eligible, in common with a prisoner serving a sentence for a term of years, for parole after serving only a part of his sentence. Without a clarifying instruction, this could have been the result in Clark’s case. Under these circumstances, we cannot say that the instruction, although improper, violated fundamental fairness and denied Clark due process of law under the fourteenth amendment.

Finally, we find no merit in Clark’s contention that the district court erred in considering at the habeas corpus hearing deposition testimony from the prosecuting attorney and the defense counsel at his state trial. Although Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974), requires an evidentiary hearing on a habeas corpus petition before a district court judge, id. at 2848 — 2849, the case does not bar the district court from hearing deposition evidence in a habeas corpus case. The statute applicable to such proceedings, 28 U.S.C. § 2246 (1970), specifically authorizes the use of depositions in cases in which a petitioner seeks a writ of habeas corpus. The statute provides in part:

On application for a writ of habeas corpus, evidence may be taken orally or by deposition, or, in the discretion of the judge, by affidavit.

Accordingly, we affirm the judgment of the district court.


author: EDWARDS, Circuit Judge.

text:
    The NORTH AMERICAN COAL CORP. et al., Plaintiffs-Appellees, v. UNITED MINE WORKERS OF AMERICA et al., Defendants-Appellants.
    No. 74-1702.
    United States Court of Appeals, Sixth Circuit.
    Feb. 25, 1975.

      David dayman, dayman & Jaffy, Columbus, Ohio, Paul A. Pachuta, Reynoldsburg, Ohio, Joseph A. Yablonski, Steven B. Jacobson, Daniel B. Edelman, Lewis D. Sargentich, Washington, D. C., for defendants-appellants.
    Edward H. Laylin, Laylin & Shawan, Columbus, Ohio, Jerry A. Fullmer, James A. Rydzel, Donald B. Redfern, Cleveland, Ohio, for plaintiffs-appellees.
    Before EDWARDS and ENGEL, Circuit Judges, and DeMASCIO, District Judge.

       Honorable Robert E. DeMascio, United States District Judge for the Eastern District of Michigan, Southern Division, sitting by designation.

   EDWARDS, Circuit Judge.

This is an appeal from convictions for criminal contempt in a mine strike case where a District Judge had issued a preliminary injunction against “engaging in a strike in violation of the collective bargaining agreement.”

The District Judge found two groups of miners, those who did not report for work at North American Coal Corporation’s Powhatan No. 5 mine on February 25, 1974, and those who did not report at Powhatan Nos. 3 and 6 mines on March 12 and 13, 1974, to be in criminal contempt and fined over 700 miners $25 apiece. Appellants claim that he did so without proof of service of the injunction, without service of the show cause order on any individual miner, without reciting in the show cause order any specific charges, and with the burden of proof at the contempt hearings placed on the defendants to establish their innocence. (Subsequently the District Judge entered an order as to the first group reducing the fine to $1.00, saying that there was some question about notice.)

Before us appellee North American Coal Corporation defends these procedures by noting that a lawyer appearing for the local unions at the February 26 contempt hearing relative to the first group had said that his co-counsel was representing their membership. Appellee also contends that attorneys for the United Mine Workers of America failed to object to the procedures employed by the court. And more generally, appellee asserts:

The record clearly demonstrates that each of the appellants were represented by counsel at the contempt hearings, had sufficient notice of the hearings, and were granted all other constitutional and statutory guarantees accorded defendants in petty criminal contempt proceedings.

This is the second appeal in recent cases involving the same District Court, the same company and the United Mine Workers union. The orders here appealed from, however, preceded this court’s-decision in North American Coal Corporation v. Local 2262, United Mine Workers of America, 497 F.2d 459 (6th Cir. 1974), wherein we dealt with some of the due process requirements in judicial employment of injunctive relief and the contempt power. The facts of the disputes underlying the present appeal are quite different from those involving the former case. The earlier case involved a strike over a grievance between the local union and the company. The present shutdowns were the result of “stranger picketing.”

THE FEBRUARY 25, 1974 CASE

On February 14 and 15 of 1975 pickets from two mines in West Virginia which were on strike appeared before a number of mines in Ohio owned and operated by North American Coal Corporation. The picket lines resulted in the shutdown of six NACC mines where there was no labor-management dispute. On February 20, 1974, the company filed a complaint in the United States District Court for the Southern District of Ohio seeking a temporary restraining order and injunctive relief against what the union termed a work stoppage and the company called a strike. The complaint named the United Mine Workers of America and its District No. 6, six of its local unions, and eight union leaders as defendants. It alleged that the named local unions were “engaged in representing or acting for the members” of the UMWA employed by plaintiff at particular mines. The complaint did not name any individual miners, except six local union presidents and the president and vice president of District No. 6.

On February 22, 1974, there was a hearing on the complaint just described where an attorney named dayman appeared for the UMWA and the six local unions named. At the hearing he specifically disclaimed any authorization to represent any individual defendants. The hearing encompassed no testimony but consisted entirely of a colloquy between the court and counsel for the company and the union. Counsel for the UMWA and its locals disavowed any responsibility on their parts for the shutdowns and argued that the employees had not crossed the picket lines set up by the West Virginia miners because of fear of violence. Counsel also declined to “resist the imposition of a restraining order or an injunction.”

On the basis of the colloquy referred to above, the District Judge entered “a preliminary injunction” which provided in applicable part as follows:

It is therefore adjudged and decreed that until further Order of this Court the Defendants and each of them who have been served with Summons in this Court, all persons, members of the defendant union, or acting in concert with them, whose names are unknown, who are or have been engaged in organizing, promotion, conducting or prosecuting picketing and/or interference with plaintiffs’ employees performing services for plaintiff at any premises of plaintiff and all other to whom knowledge of this Order shall come, be and they are hereby enjoined and restrained as follows:
1) From picketing or engaging in other activities in support of their violation of the collective bargaining agreement between Plaintiffs and Defendants;
2) From engaging in a strike in violation of the collective bargaining agreement between Plaintiffs and Defendants;
3) From refusing and declining to process whatever dispute may exist through the contract dispute arbitration procedures;
4) Defendants District No. 6, United Mine Workers of America, John Guzek, and Arthur Nelms shall notify Local Union 1110 and each other local union within its jurisdiction and each member of Local 1110 and each other member within its jurisdiction of the provisions of this order.

This order of the District Court was entered late Friday afternoon. On Monday, February 25, 1974, five of the affected mines resumed work, but Powhatan No. 5 mine (whose employees were members of Local 1441) did not return to work until the midnight shift on February 26.

On February 25 the District Court issued the show cause order which follows:

It appearing to the Court that persons enjoined therein may be in violation of this Court’s Order of February 22, 1974.
Accordingly, it is hereby Ordered that the President, Richard Vargo, and all other elected officers and officials of Local 1441, of the United Mine Workers of America, appear before this Court in Dayton, Ohio, on February 26, 1974, at 3:00 P.M. to show cause why they and the Membership of Local 1441 should not be held in Contempt of this Court.

Subsequently, at an adjourned hearing on March 4, 1974, the District Judge called upon the defendants to show cause why they should not be held in contempt:

THE COURT: Gentlemen, there is a show cause order, and I believe, Mr. Yoss, this.places a burden upon you to go forward with whatever evidence you wish to present.

Defendants’ counsel thereupon presented five witnesses. No sworn testimony was presented by the company.

On March 8 the District Judge entered the order which is appealed from herein:

This matter is before the Court pursuant to an Order issued on February 25, 1974, requiring representatives of Local Union 1441 of the United Mine Workers of America to show cause why such representatives and the membership of Local 1441 should not be held in contempt of this Court.
Pursuant to the foregoing Order, a hearing was held in the United States District Court at Dayton, Ohio, at 3:00 p. m. February 26, 1974. At such time counsel for Local 1441 requested a continuance. The request for continuance was granted and the matter was heard in the United States District Court at Columbus, Ohio, on March 4, 1974, at which time the said defendants appeared by counsel, presented evidence and testimony intended to show cause why such defendants should not be held in contempt of this Court.

Based upon such presentation of evidence and testimony, information supplied in open court by counsel, and based upon previous information supplied to this Court at prior hearings herein, the Court determines the following:

1. Local Union 1441 of the United Mine Workers of America is the bargaining agent for coal miners employed by the North American Coal Corporation at its Powhatan No. 5 mine.
2. At no time, from February 20, 1974, through February 25, 1974, was there any dispute pending between the North American Coal Corporation and Local Union 1441. At no time between the aforesaid dates was there any dispute involving the North American Coal Corporation and any local union of the United Mine Workers within District No, 6 of the United Mine Workers of America.
3. On February 22, 1974, this Court issued a preliminary injunction enjoining the members of Local Union 1441 and members of other local unions from “picketing or engaging in other activities in support of their violation of the collective bargaining agreement between plaintiffs and defendants.” Such collective bargaining agreement being the National Bituminous Coal Wage Agreement of 1971 which provides for binding arbitration of all disputes.
4. The Order of this Court was filed at 4:17 p. m. on February 22, 1974, and notice of such order was communicated to counsel for the defendants and to the officers of Local 1441 prior to 12:01 a. m. February 25, 1974.
5. At no time subsequent to February 22, 1974, were there pickets present at such Powhatan Mine No. 5 either from Local Union 1441 or from any other local union of the United Mine Workers of America.
6. At 12:01 a. m. February 25, 1974; at 8:00 a. m. February 25, 1974; and at 4:00 p. m. February 25, 1974, members of Local 1441 engaged in activities violative of the aforesaid collective bargaining agreement by refusing to enter the mine, as required by such agreement.

Accordingly, the Court finds that each and every member of Local Union 1441 of the United Mine Workers of America who thus violated the collective bargaining agreement has failed and refused to obey the order of this Court of February 22, 1974, and is therefore in contempt thereof. Each of such persons is hereby fined the sum of Twenty-five ($25.00) Dollars. The parties are directed to proceed as follows:

1. The President or Financial Secretary of Local 1441 shall forthwith transmit to this Court the names and addresses of every member of such local as of 12:01 a. m. February 22, 1974.
2. The plaintiff North American Coal Corporation shall forthwith advise the Court which members of Local 1441 did in fact enter the mine at either 12:01 a. m., 8:00 a. m., or 4:00 p. m., February 25, 1974, for purposes of working therein.
3. Each member of such local who did not enter Powhatan No. 5 mine on February 25, 1974, for purposes of working therein shall by April 1, 1974, pay to the Clerk of this Court the sum of Twenty-five ($25.00) Dollars as a fine for contempt of court.
4. The President and Financial Secretary of such union are hereby authorized to collect the fines of Twenty-five ($25.00) Dollars and transmit them to the Clerk of this Court by April 1, 1974, together with a list of those union members whose fines have been collected.

The defendants are directed to read this Order in full at the next regular membership meeting of Local Union 1441 and to post a copy thereof at such meeting place. Plaintiff is directed to post a copy of this Order on each of the bulletin boards at its Powhatan No. 5 mine. Plaintiff is likewise directed to distribute to each member of defendant union a copy of this Order at the time such members receive their next paycheck.

It is so ORDERED.

THE MARCH 12-13, 1974 CASE

On March 12 and 13 various of North American Coal Corporation’s mines were picketed by striking miners from an Ohio mine owned by Oglebay-Norton Company. This resulted in shutting down NACC’s Powhatan No. 3 mine (UMWA Local Union 2262) and Powhatan No. 6 mine (UMWA Local Union 1810) on certain shifts on the two days concerned. The District Judge entered a show cause order (similar in all relevant respects to that of February 26, 1974, as quoted above). A show cause hearing (similar in all relevant legal respects to that of March 4, 1974) was then held on March 14, 1974. On April 3 the District Judge entered another contempt order which is identical in all major respects to the contempt order of March 8, 1974, which we have quoted above.

HOLDING

The equity power of the District Court to grant injunctive relief and enforce its orders by contempt proceedings is potent, indeed. United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947). And as the District Judge recognized in this case, the Supreme Court has squarely authorized employment of these measures to restrain strikes in violation of labor-management contracts construed to contain mandatory grievance arbitration clauses. See Boys Market, Inc. v. Retail Clerks’ Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970); Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974). Nonetheless, the awesome powers of injunction and contempt are hedged by constitutional, statutory and judicial restrictions so as to guarantee the court’s adherence to due process and to protect individuals from arbitrary use of such powers. In this case the essentials of due process are singularly absent.

We shall deal first with the contempt convictions of all appellants other than the eight named union officers. The record we have examined shows that over 700 miners (the record does not reveal precisely how many) have been found guilty of criminal contempt and fined. It further shows that this was accomplished without 1) proof of service of the injunction concerned upon any of those convicted, 2) without proof of service of the contempt citation upon any of those convicted, or even naming them in the proceedings, 3) without service of a statement of the facts constituting the alleged contempt, 4) without the individual defendants being present or represented in the courtroom, and 5) with the burden of proof of innocence thrown upon the defendants.

With this much established, we find no need to respond to still other claims of substantive error which may or may not prove meritorious. The contempt adjudications of March 8 and April 3 as to local union members cannot stand.

There is no such thing in the law of these United States as a class action criminal proceeding wherein unnamed defendants are tried in absentia through representatives.

The fundamental authorities for our holding in this case are, of course, the due process clause of the Fifth Amendment and the procedural guaranties of the Sixth Amendment to the United States Constitution. They read:

No person shall be deprived of life, liberty, or property, without due process of law; . U.S.Const. amend. V.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence'. U.S.Const. amend. VI.

In an early labor case, the Supreme Court spelled out these rights:

If then, as the court of appeals correctly held, the sentence was wholly punitive, it could have been properly imposed only in a proceeding instituted and tried as for criminal contempt. The question as to the character of such proceedings has generally been raised, in the appellate court, to determine whether the case could be reviewed by writ of error or on appeal. Bessette v. Conkey, 194 U.S. 324 [24 S.Ct. 665, 48 L.Ed. 997]. But it may involve much more than mere matters of practice. For, notwithstanding the many elements of similarity in procedure and in punishment, there are some differences between the two classes of proceedings which involve substantial rights and constitutional privileges. Without deciding what may be the rule in civil contempt, it is certain that in proceedings for criminal contempt the defendant is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt, and cannot be compelled to testify against himself. Boyd v. United States, 116 U.S. 616 [6 S.Ct. 524, 29 L.Ed. 746]; United States v. Jose [C.C.] 63 F. 951; State v. Davis, 50 W.Va. 100 [40 S.E. 331]; King v. Ohio Ry. [C.C.] 7 Biss. 529 [Fed.Cas.No.7,800]; Sabin v. Fogarty [C.C.] 70 F. 482, 483; Drakeford v. Adams, 98 Ga. 724, 25 S.E. 833.

Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 444, 31 S.Ct. 492, 499, 55 L.Ed. 797 (1911).

The Supreme Court has, however, been active in spelling out the application of the due process clause in many situations of possibly lesser moment than those involved in criminal contempt cases.

Probation revocation — Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

Parole revocation — Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

Welfare benefit terminations — Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).

Repossession — Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974).

Employment termination — Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).

Driver’s license suspension — Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971).

Termination of parental rights — Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

Prison discipline — Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

Prejudgment wage garnishment — Snidach v. Family Financial Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969).

More directly in point, as we pointed out in North American Coal Corp. v. Local Union 2622, UMWA, supra 497 F.2d at 465 — 66, is Rule 42(b) of the Federal Rules of Criminal Procedure:

(b) Disposition Upon Notice and Hearing. A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. Fed. R.CrimJA_42(b),. .

As we have noted, no such notice as is called for by the rule was provided to any of the nonofficer members convicted. It is equally clear that as to these members there was no compliance with Rule 42(b)’s flat requirement that “[the notice] shall state the essential facts constituting the criminal contempt charged and describe it as such.”

Further, as we pointed out in North American Coal Corporation concerning burden of proof:

“Except for a narrowly limited category of contempts, due process of law as explained in the Cooke case (Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767) requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.” In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 508, 92 L.Ed. 682 (1948). In this regard the Eighth Circuit has held:
“Rule 42(b) does not relieve the prosecution of its burden to establish guilt beyond a reasonable doubt. The order to show cause is merely a method of serving notice of the alleged violation of an order. United States v. United Mine Workers, 330 U.S. 258, 296-297, 67 S.Ct. 677, 91 L.Ed. 884 (1947). The alleged contemnor is at all times clothed with the presumption of innocence and the Government has the continuing burden of proving his guilt. Yates v. United States, 316 F.2d 718 (10th Cir. 1963); James v. United States, 275 F.2d 332, 335 (8th Cir.), cert. denied, 362 U.S. 989, 80 S.Ct. 1077, 4 L.Ed.2d 1022 (1960); Nilva v. United States, 227 F.2d 74, 80 (8th Cir. 1955), aff’d, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415 (1957).” In re Van Meter, 413 F.2d 536, 538 (8th Cir. 1969).

North American Coal Corp. v. Local 2262, United Mine Workers of America, 497 F.2d 459, 466 (6th Cir. 1974).

As to the eight named union officers (some of whom were served and present in court) their contempt convictions were also based on contempt notices which failed to state “the essential facts” and upon proceedings wherein they as the accused were required to bear the burden of proof of their innocence.

Reversed. The judgments of conviction are vacated. Costs to appellants.