source: Caselaw Access Project

author: KILKENNY, Circuit Judge: MERRILL, Circuit Judge

license: Public Domain

text:
    Herbert Marion THORNE, Appellant, v. UNITED STATES of America, Appellee.
    No. 71-1457.
    United States Court of Appeals, Ninth Circuit.
    May 31, 1973.

      R. Jay Engel (argued), San Francisco, Cal., for appellant.
    Donald N. Stahl, Asst. U. S. Atty. (argued), Dwayne Keyes, U. S. Atty., Richard V. Boulger, Asst. U. S. Atty., Fresno, Cal., William J. Connolly, of Connolly, Johnson & Hothem, San Francisco, Cal., for appellee.
    Before MERRILL, WRIGHT and KILKENNY, Circuit Judges.
   KILKENNY, Circuit Judge:

This is an appeal from the dismissal of an action by appellant prosecuted under the Federal Torts Claims Act, 28 U.S.C. § 1346(b) and § 2674 in connection with personal injuries sustained by him in an accident which occurred in California on the construction site of a government dam. At the conclusion of appellant’s case, the appellee’s motion to dismiss was granted. We reverse.

FACTS

The appellant was an employee of Guy F. Atkinson Construction Company [Contractor], which had contracted with the Department of the Interior, Bureau of Reclamation, of the United States [Bureau], to construct a spillway as part of the dam. The Bureau performed all of the preliminary surveying and geological studies on which it compiled a set of specifications and standards for the construction project. Appellant’s duties required his presence in a trench which was one of a series of trenches being dug across the face of the dam’s spillway. Commonly known as “toe trenches”, they were designed to act as a foundation for the spillway which ran down hill on a steep slope in shale rock. The overall design called for the toe trenches to be filled with concrete on completion. The spillway and its supporting trenches were being constructed on the shale base, which had been extensively surveyed prior to the award of the contract. At the time of the accident, the toe trench in question was almost completed, having been dug to a depth of approximately three feet. At that point, and while appellant was digging in the trench, a large slab of shale rock broke loose on the upper side of the trench, slid downhill across the trench striking and injuring him.

The General Provisions of the contract for • the construction of the dam, including the spillway, required the Contractor, at a minimum, to comply promptly with its own safety requirements and, in addition, required it to comply with the “Safety Requirements for Construction by Contract”, as published by the Bureau. The published Safety Requirements referred to in the contract made specific reference to procedures to be utilized when confronted with open excavations.

Beyond that, the General Provisions required the Bureau to notify the Contractor, in writing of any non-compliance with the Safety Requirements of the published rules. For failure of the Contractor to comply with any such directive, the Contracting Officer was authorized to issue an order suspending all or part of the work until corrective action was taken.

That the agents of the Bureau in charge of supervising the construction recognized the danger of slides in excavating a trench on the steep slope is well established by the evidence. Prior to the award of the Contract, the Bureau, through its geological surveys, was fully aware of the shale rock to be encountered in the construction of the spillway and the digging of the trenches. Needless to say, that was the reason for the shoring requirements on the upside of the trench. The only logical purpose of the requirement for installation of the shoring above the toe trenches was to prevent slides, such as here occurred, and thus prevent injury to workmen and others who might be in or around the trench. The Bureau’s supervising construction inspector discussed the danger with the labor foreman of the Contractor and directed him to place anchor bars above the trenches in order to prevent slippage. A supervisor for the Contractor was present at this discussion. The Bureau’s knowledge of the danger encountered in trenching on the spillway in question is demonstrated by the testimony of Mr. Koehler, a Bureau construction supervisor, in his conversation with Mr. Ward, a supervisor for the Contractor. . The record shows that anchor bars were placed above the toe trench dug immediately previous to the one under scrutiny. Despite the specific safety requirements on open excavations in the Bureau’s publication and the acknowledged recognition of the danger by both the Bureau and the Contractor, no anchor bars were put in place above the offending trench. It is undisputed that the trench was under excavation for a period of five days prior to the accident. During most of this time, a Bureau inspector was present. However, an inspector was not present at or near the trench on the day of the accident.

The undisputed evidence, including a dramatic photograph of the trench in question, demonstrates beyond a reasonable doubt that the excavation of the particular trench across the face of the steep spillway was a highly dangerous operation. It is unquestioned that the Bureau, through the testimony of its own supervisors, its surveys and the requirements of its own Safety Rules, recognized the dangerous character of the trenching operation.

Without reference to the dangerous type of work in which appellant was employed, or the applicability of the California state law to the facts, the trial judge treated the Bureau’s motion for dismissal, at the close of appellant’s case, as a motion for judgment in favor of the defense and allowed the motion with the terse statement: “ . I’m of the view that plaintiff has not established the requisite facts to establish liability on the part of either defendant in this case. . . . ” The findings and conclusions prepared by counsel for the Bureau and signed by the judge are no more enlightening as to the law which he applied to what we must consider as the undisputed facts, drawing therefrom all inferences favorable to appellant. With this background before us, we proceed to explore the applicable law.

BUREAU’S DUTY UNDER TORTS CLAIMS ACT

The applicable provisions of the Fed- ■ eral Torts Claims Act makes the United States [Bureau] liable for personal injuries caused by the negligent or wrongful acts or omissions of an employee of the Bureau while acting within the scope of his office or employment under any and all circumstances where the Bureau, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

Here, the accident occurred in California. Consequently, California law governs in determining whether a private person, and, therefore, the Bureau, should be liable on the record before us.

CALIFORNIA LAW

The one case to which our attention has been directed and the only one our research has revealed, which is almost exactly in point on the application of state law to the factual background before us is Emelwon, Inc. v. United States, 391 F.2d 9 (CA5 1968), cert. denied 393 U.S. 841, 89 S.Ct. 119, 21 L.Ed.2d 111. There, as here, the appellants sought recovery under the Federal Torts Claims Act for damages to their growing crops, in connection with a spraying operation. The district court directed a verdict for the United States on the ground that the state of Florida, which carried on the spraying operations causing the damage, was neither an agent nor an employee of the United States, but was an independent contractor. In reversing the judgment, the Fifth Circuit recognized that the United States could not be held liable without fault and that the doctrine of strict liability did not apply, citing among others, Dalehite v. United States, 346 U.S. 15, 44-45, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), and also recognized that under ordinary circumstances the United States could not be held liable for the negligence of an independent contractor. After acknowledging these rules, the court then went on to hold that there were at least two applicable theories of Florida law under which the United States would be liable. First, the Florida rule that the owner or employer may incur liability through its failure to halt an operation when it gains knowledge of a dangerous situation, which might be created by an independent contractor. Second, the Florida rule that one who employs an independent contractor to engage in certain types of dangerous activity has a “non-delegable duty” and must see to it that the independent contractor carries out his task in a nonnegligent manner. On the second point, the court went on to say that the employer’s liability was not absolute, nor was he held vicariously liable for the negligence of the independent contractor. Instead, liability was imposed on the employer for' his own failure to exercise reasonable care in a situation in which the work is sufficiently dangerous that the employer himself has a duty to third persons who may sustain injuries from the work unless proper precautions are taken. The court then went on to hold that the spraying of herbicides or insecticides was an activity which was sufficiently dangerous to warrant the application of the Florida non-delegable duty rule.

A perusal of the California authorities convinces us that the law of that state is essentially the same as the Florida law before the Court in Emelwon, Inc., supra.

Before we discuss the specific California cases, it is well to recognize that its courts have followed the proposition that one who employs an independent contractor is, as a general rule, not liable for the misconduct of the latter or his servants while acting within the scope of the contract. The idea responsible for this general rule of non-liability is the want of control and authority of the employer over the work, and the consequent harshness of the rule which would hold one responsible for the manner of conducting an enterprise over which he lacks the authority to direct the operations. However, the court recognizes that there are certain clear cut exceptions which, with increasing tendency, seem to overshadow in importance and scope the rule itself.

At least one of these exceptions is here of importance. It is the duty imposed on an employer of an independent contractor for the misconduct of the latter in the performance of certain “intrinsically dangerous” work. The policy of allocating to the owner or employer the risk incident to his activity is obvious when the activity carries with it extraordinary hazards to third persons. This duty is recognized, as California law in the exhaustive opinion of Justice Peters in Van Arsdale v. Hollinger, 68 Cal.2d 245, 66 Cal.Rptr. 20, 437 P.2d 508 (Cal.1968), a case comparable to the one before us. In Van Arsdale, an employee of a street improvement contractor was eradicating markings on a busy street. The City of Los Angeles and the contractor recognized that the street improvement work involved special hazards to the public and to the employees of the contractor. By the terms of the agreement, the contractor was required to provide flagmen, wearing red coats and carrying a red hat or sign. When plaintiff was injured, no flagmen were working and the plaintiff, the injured employee of the contractor, was not wearing a red or orange jacket. There, the court imposed liability on the City for its failure to exercise care in a situation in which the work was sufficiently dangerous that it had a duty to others who might sustain injuries from the work unless proper precautions were taken in the performance thereof. It went on to hold that the taking of such precautions was a duty which the city could not delegate to its independent contractor so as to evade liability. Under California law, the Bureau, in this case, was under a duty to exercise reasonable care to see that proper precautions were taken by the contractor. On the record before us, no such precautions were taken.

While generally speaking, the mere reservation of a right to inspect work performed by an independent contractor, including the right to stop the work if precautions are not taken, does not impose upon the government any duty of inspection or control, Roberson v. United States, 382 F.2d 714 (CA9 1967), this rule does not apply to a factual background, such as this, where the work is extra-dangerous. Although an extra-dangerous condition may have been involved in Roberson, the court refused to consider this problem for the reason that the issue had not been raised in the lower court. P. 718.

Since we perceive of no significant distinction between the non-delegable duties of an owner in his contract relationship with an independent contractor, and the same duties in the relationship between an independent contractor and his subcontractor, we think the following cases are also in point on the California law to be applied to the record here presented, to wit: Kirk v. Kemp Bros., 12 Cal.App.3d 136, 90 Cal.Rptr. 553 (1970); Anderson v. L. C. Smith Construction Co., 276 Cal.App.2d 436, 81 Cal.Rptr. 73 (1969).

The Bureau attempts to distinguish between the facts in Van Arsdale and the facts before us on the ground that prior to the beginning of the work the government had no warning that “particular risk of physical harm” would arise. This argument is foreclosed by the record. The government’s plans and specifications under which the contract was let required the digging of this and other trenches across the face of a steep slope, which the government knew from it own surveys would be cut through shale rock. Beyond that, the government supervisors in charge were fully aware of the dangerous character of the work. Cases such as McDonald v. Shell Oil Co., 44 Cal.2d 785, 285 P.2d 902 (1955) and Anderson v. L. C. Smith Construction Co., supra, cited by Bureau, did not involve highly dangerous work, known to be such by the owner. In attempting to reconcile Emelwon, Inc. v. United States, supra, the Bureau completely misses the effect of that decision. Without citing authority, it makes a simple statement that the non-delegable duty asserted by appellant is not applicable to the United States under the Torts Claims Act. The argument completely ignores the California law on the subject and the fact that the Bureau had previous knowledge of the highly dangerous nature of the work and that its plans required the construction of the dangerous trenches. At least two of its supervisors were fully aware of the dangerous character of the work. The many cases cited by Bureau on sovereign immunity have no application. The Torts Claims Act, under which appellant is proceeding, waived this immunity to the extent of the provisions of the Act.

The Bureau’s reliance on United States v. Page, 350 F.2d 28 (CA10 1965), is also misplaced. A casual reading of the case reveals that the facts did not present a situation where the employees of the United States and the United States itself had actual knowledge of the dangerous nature of the work. Beyond that, the court did not directly pass on the problem before us. We quote from the opinion: “The general law on the subject casts serious doubts on whether the doctrine of non-delegable duty, as here involved, applies to injuries to employees of the independent contractor.” P. 33. The court then went on to express the view that the Supreme Court of Utah would probably follow the rule as stated. Van Arsdale and other California cases demonstrate that the alleged Utah rule is not followed in California.

Appellee’s argument on failure to introduce evidence on the proximate cause of appellant’s injuries is groundless. The shale slide caused the injury. Lack of proper precautions, recognized by the Contractor and the Bureau, re-suited in the slide. The failure of the Bureau to insist on the necessary precautions was a cause. It need not be the only cause. Adkins v. County of Sonoma, 67 Cal.2d 185, 60 Cal.Rptr. 499, 430 P.2d 57 (1967).

The recent case of Jeffries v. United States, 477 F.2d 52 (CA9, 1973), is distinguishable. There, the author of the opinion expressed some doubt as to “whether the ‘non-delegable duty’ theory is available under the Federal Torts Claims Act.” P. 57. It is clear that the court’s doubt was directed to the question whether the non-delega-ble duty theory would apply where the result would be to impose vicarious liability upon the United States for negligence of the contractor. The same is true of United States v. DeCamp, 478 F.2d 1188 (CA9, 1973). There, the majority held that there was no negligence on the part of either the contractor or the government. Here, both were negligent.

CONCLUSION

It is our considered judgment that the Bureau should have recognized that the construction of the trench across the face of the shale side hill, under the terms of the contract, would involve a peculiar risk of bodily harm to others unless special precautions were taken. Under California law, the Bureau had a non-delegable duty to exercise reasonable care, including the duty to see to it that the Contractor exercised such care. On these facts, the findings and conclusions of the trial judge are clearly erroneous.

REMAND

The judgment of dismissal was allowed at the close of appellant’s case on the issue of liability. That judgment is set aside and the cause remanded to the lower court for a new trial, in which trial the court will apply to the facts the California law as above stated.

It is so ordered.

MERRILL, Circuit Judge

(concurring) :

I concur in the opinion of Judge Kil-kenny. I should only like to emphasize that while the phrase “non-delegable duty” may conjure up visions of vicarious liability beyond the scope of the Tort Claims Act, the duty here owed by the Bureau, as stated by Judge Kilken-ny, was to exercise reasonable care to see that proper precautions were taken by the contractor. It was breach of this duty by employees of the Bureau that results in liability of the United States.

California law may, as the Government contends, impose upon the state liability greater than that imposed on the United States by the Tort Claims Act. If' so, that excess of liability need not concern us here.

      . “Open Excavation
      14-10. Where danger of slides or eave-ins exist and workmen may he endangered, the sides shall he sloped to a stable angle of repose, or supported hy sheet piling or adequate shoring.
      14-11. Men and equipment working below vertical cuts or steep slopes shall be protected from rock and falling objects in the following manner:
      a. Proper scaling performed prior to exposure and at intervals necessary to eliminate the danger.
      b. Roof bolting and wire mesh or equal protection afforded where the material continues to ravel and fall after careful scaling.
      c. Protective timber or wire mesh barricades created at the top of the cut and at necessary vertical intervals down the slope.
      d. Benching to catch and retain falling material. Utilization of any or all of the protective methods listed above shall be at the option of the Contracting Officer,2 or his authorized representative, following inspection of the site.”
      [Emphasis supplied.]

      . * * * * *
      “The Court: All right, tell us.
      The Witness: Since these other slides occurred I took Mr. Ward and told him, we walked ,to this area, and I told him that he was going to have to do something to make this safe before he excavated the trench. We discussed the various means of shoring it and whatnot, and as there was nothing to kick shoring to except open air, we discussed grouting the anchor bars in place as a means of holding the shale. He agreed that that would be the thing to do, and that was the extent of the conversation. He said that he would grout these bars in place before he excavated this trench.
      Mr. Engel: Q. Now, when you say this trench,4 you mean the trench, at 6 plus 54, is that correct?
      A. Yes, sir.” [R.T., page 73],
      * * :¡: * *

      . Issue of liability only.

      . The Contractor was joined under a third-party complaint filed by the Bureau.

      . 28 U.S.C. § 1346.
      “(b) . . . for money damages, . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”
      28 U.S.C. § 2674.
      “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances;

      . Official in charge for the Bureau.

      . Trench in which appellant was injured.


author: McCREE, Circuit Judge

text:
    Robert W. KELLEY et al., Plaintiffs-Appellants, v. The METROPOLITAN COUNTY BOARD OF EDUCATION OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, et al., Defendants-Appellees.
    No. 72-2143.
    United States Court of Appeals, Sixth Circuit.
    June 6, 1973.

      McCree, Circuit Judge, concurred and filed opinion.
    Avon N. Williams, Jr., Nashville, Tenn., Jack Greenberg, James M. Na-brit, III, Norman J. Chachkin, Sylvia Drew, New York City, for plaintiff s-appellants.
    James H. Harris, III, Seymour Samu-els, Jr., Harlan Dodson, Dick L. Lans-den, Gilbert S. Merritt, Charles H. War-field, James F. Neal, Nashville, Tenn., for defendants-appellees.
    Before EDWARDS, CELEBREZZE and McCREE, Circuit Judges.
   ORDER.

On receipt and consideration of a motion to dismiss an appeal and on consideration of the briefs filed therein; and

Finding in the record no abuse of discretion on the part of the District Judge whose order of refusal is sought to be appealed and no clear legal ground for issuance of a writ of mandamus if appellant’s appeal should be considered to be such, Ex Parte American Steel Barrel Co., 230 U.S. 35, 45, 33 S.Ct. 1007, 57 L.Ed. 1379 (1913),

The appeal is hereby dismissed; or alternatively, said petition for writ of mandamus is hereby denied.

McCREE, Circuit Judge

(concurring).

I agree with the majority that we have jurisdiction to hear this appeal from the order of the District Judge recusing himself. Although the order lacks finality in the sense that it does not dispose of the case, by its nature (unlike an order denying a motion for recusal, see Albert v. United States District Court for the Western District of Michigan, 283 F.2d 61 (6th Cir. 1960); Collier v. Picard, 237 F.2d 234 (6th Cir. 1956)) it would not likely be reviewed if the second judge should make a final decision that caused appellant to feel aggrieved. Accordingly, if it is to be reviewed at all, it must be reviewed now, and I agree with my colleagues that we should proceed to the merits.

A judge, although perhaps not legally disqualified under 28 U.S.C. §§ 144, 455, should recuse himself if he knows of some reason why he should not sit, and in such a case should state the basis for his decision. If there is no reason other than his disinclination to hear a matter, he should not be permitted to step aside merely to avoid an unpleasant or onerous task. A litigant is entitled to have a judge to whom a matter is assigned in due course hear and dispose of that matter if there is no reason to disqualify him or otherwise to make him unavailable. As Mr. Justice Rehnquist pointed out in his memorandum explaining his decision not to disqualify himself nunc pro tunc from the decision in Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972):

Those federal courts of appeals that have considered the matter have unanimously concluded that a federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified. Edwards v. United States, 334 F.2d 360, 362 n. 2 (CA5 1964); Tynan v. United States, 126 U.S.App.D.C. 206, 376 F.2d 761 (1967); In re Union Leader Corp., 292 F.2d 381 (CA1 1961); Wolfson v. Palmieri, 396 F.2d 121 (CA2 1968); Simmons v. United States, 302 F.2d 71 (CA3 1962); United States v. Hoffa, 382 F.2d 856 (CA6 1967); Tucker v. Kerner, 186 F.2d 79 (CA7 1950); Walker v. Bishop, 408 F.2d 1378 (CA8 1969).

409 U.S. 824, 837, 93 S.Ct. 7, 15, 34 L.Ed.2d 50 (1972) (emphasis in original).

The District Judge in this case determined that the motion and affidavit filed under 28 U.S.C. § 144 were devoid of merit; indeed, he referred to the filing of the motion as a “ploy” and a “subterfuge.” Yet he proceeded to re-cuse himself, and thus to effectuate what he had characterized as defendants’ improper purpose. In the ordinary case, this action would be highly questionable.

But this is not the ordinary case, and this is not the stage of the proceedings where a motion to have a judge recuse himself is ordinarily filed. It is a school desegregation case that began in 1955 before a judge other than the judge who entered the order from which this appeal has been taken. In our latest consideration of the case on the merits, we affirmed the District Court’s selection of a desegregation plan to replace earlier plans that did not result in the creation of a unitary school system. Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, Tennessee, 463 F.2d 732 (6th Cir.), cert. denied, 409 U.S. 1001, 93 S. Ct. 322, 34 L.Ed.2d 262 (1972). The defendants have since urged the District Court to modify the plan because of hardships and impracticalities that they assert have developed, and plaintiffs have vigorously opposed these modifications.

It is essential during the remedial stage of a school desegregation case that the parties cooperate in devising and implementing a workable plan. Where there should be a climate of conciliation and compromise, the record in this case discloses an atmosphere of hostility and suspicion. As has been true since the beginning of this litigation, the parties have been able to agree on virtually nothing. The District Judge has intimated that the defendants have purposely frustrated effective implementation of the desegregation plan in order to marshal public opinion against it and thereby to reinforce their capacity to resist correcting the unconstitutional condition that they have been held to have created. There have been heated exchanges between the court and the defendants, and the court has apparently felt frustrated at its inability to move the defendants off dead center in their refusal to take any constructive action toward meeting their constitutional obligation.

In this context, the judge apparently believed that he could promote a conciliatory mood and enhance the prospect of cooperation and compromise if he took the drastic step of disqualifying himself, as he explained in denying plaintiff’s motion to reconsider:

“The quality of justice cannot be dependent upon the identity of a particular individual who sits on a particular Court at a particular time. A general uniformity of justice is effected by the nature and structure of our judicial system. It is the process, not the particular person, which determines the justice applied in our society.
“It is this Court’s observation that everything that has occurred to date in this case is the natural, necessary, inevitable, and fully predictable consequence of the School Board’s hardline policy — however induced or influenced.
“It is likewise this Court’s opinion that changing the Judge won’t change anything else unless the Board seizes the opportunity to modify its attitudes. Perhaps changing Judges can operate as it sometimes appears when baseball clubs change managers — maybe emotions can be calmed so intelligence can have an opportunity.”

In these unusual circumstances, I am prepared to agree that the judge has not abdicated his duty to sit and has not abused his discretion in acting as he believed necessary or proper to advance the course of the sensitive litigation before him. Care should be taken, however, that the motion to recuse does not become a device by which recalcitrant school boards — or dissatisfied parties generally — may judge-shop by provoking the removal of judges whom they perceive to be unsympathetic to their cause. No matter how acrimonious the debate, or how fractious the parties, a judge should refuse to recuse himself as long as he believes he can render a fair and impartial decision. But if he has cause to believe that his departure, either because a party will then not be able to assert bias on the part of the judge as an excuse for noncooperation or because the chemistry of the particular judge-litigant relationship has exacerbated tensions or hostility already existing in the case, then he should step aside in favor of a colleague. I believe that the recusal decision here, for the reasons stated by the trial judge, was warranted by the extraordinary circumstances of this case in its current posture, and I therefore concur with the result of the majority.

      . We recognize that this court has held that a District Judge’s denial of a motion to disqualify under 28 U.S.C. § 144 (1970), is not a final and appealable order. Collier v. Picard, 237 F.2d 234 (6th Cir. 1956); Albert v. District Court, 283 F.2d 61 (6th Cir. 1960). We do not, however, feel that these cases necessarily control a District Judge’s grant of a motion to disqualify in a case wherein he has already entered a decree in equity, which decree he has a continuing responsibility to administer, along with a substantial background of experience.


author: JONES, Circuit Judge:

text:
    ESTATE of William GOLDSTEIN, Deceased, Thelma Zelinger, Executrix, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    No. 72-1319.
    United States Court of Appeals, Tenth Circuit.
    June 18, 1973.

      Gilbert Goldstein, Denver, Colo. (Hoffman, Goldstein & Armour-P.C., Denver, Colo., on the brief), for appellant.
    Richard Halberstein, Washington, D. C. (Fred B. Ugast, Acting Asst. Atty. Gen., Meyer Rothwacks, Ernest J. Brown, Richard Halberstein, Attys., Tax Div., Dept, of Justice, Washington, D. C., on the brief), for appellee.
    Before JONES , SETH and HOLLOWAY, Circuit Judges.

       Of the Fifth Circuit, sitting by designation.

   JONES, Circuit Judge:

William Goldstein, a resident of Denver, Colorado, died on December 9, 1966. He left a will dated December 7, 1953, and a codicil thereto dated August 2, 1966. His will provided that, after the payment of debts, funeral expenses and other charges, the remainder of the estate should be held in trust with income payable to his wife, Elizabeth Goldstein, for life with a direction that the trustee should pay to her from principal such sums as were necessary for her support. By the will the testator named David Goldstein as executor and trustee. The codicil substituted Thelma Zelinger as executrix and trustee. On January 3, 1967, the will and codicil were admitted to probate and Thelma Zelinger qualified as executrix. Prior to her husband’s death Elizabeth Goldstein had suffered several strokes which rendered her physically incapacitated and mentally incompetent. She was never judicially determined to be incompetent and no guardian was ever appointed for her.

The statute law of Colorado gives to the surviving spouse of a testate decedent the option to take one-half of the decedent’s estate. It is provided that the option be exercised by filing a written election within six months after the probate of the will. The failure to exercise the option within the six months period shall, by the terms of the statute, “be conclusive evidence of the consent of the surviving spouse to the provisions of such will.” There is a provision that the personal representative, which is defined to include a guardian or conservator, of an incompetent surviving spouse is under a duty to report to the court which, after a hearing, and within six months after probate of the will, shall make an election on behalf of the surviving spouse to take under the will or under the statute. The court is authorized, for cause shown and after notice and hearing, to extend the time for exercising the option to elect for an additional six months period. Colo.Rev.Stat. § 153-5-4.

On April 3, 1967, three months after the will was admitted to probate, the executrix petitioned the probate court for authority to use estate funds for the care of her mother, Elizabeth Goldstein. The executrix filed a Colorado inheritance tax return and paid tax on the basis of a life estate to her mother and a remainder interest in herself in her own right.

Some time prior to March 8, 1968 David Goldstein, a nephew of the decedent who was originally named as his executor and trustee, visited Elizabeth Gold-stein and attempted to discuss with her the option to elect to take under or against the provisions of the will of William Goldstein. She was unable to comprehend the explanation given to her and unable to make any decision with respect to the election. She finally told her husband’s nephew David to do whatever he thought best for her. On March 8, 1968 David Goldstein as next friend of Elizabeth Goldstein filed in the probate court a petition which, among other things, contained the following:

“5. That the said Elizabeth Gold-stein suffered a stroke in or about 1958 and since has been and now is physically incapacitated, partially paralyzed, unable to walk, and mentally restricted, although she has not been adjudicated a mental incompetent.
“6. That the said Elizabeth Gold-stein had no knowledge or understanding of the time in which to elect pursuant to said 153-5-4, C.R.S., 1963, as amended, and having been advised of such right does desire this Court enter such Petition for election, and requests further that this Court enter an Order allowing her to take and receive one-half of the Testator’s Estate as provided in Section 153-5-4, said Order being entered nunc pro tunc June 9, 1967.
“7. That the Petitioner further alleges that said failure to file the Petition was without fault of Elizabeth Goldstein and that due to her mental and physical condition said Elizabeth Goldstein was unable to make a prior prudent determination concerning said election.”

On the same day there was filed in the probate court an instrument signed by Elizabeth Goldstein petitioning the court to enter an order requested by David Goldstein and waiving any notice relating thereto. A hearing was held before the probate court at which David Gold-stein testified concerning the physical disabilities and the mental incapacity of Elizabeth Goldstein. The court entered an order on the same date as follows:

“1. That Elizabeth Goldstein is the widow of William Goldstein, deceased.
“2. That the said Elizabeth Goldstein is entitled to take and receive one-half of the Testator’s Estate as provided in Section 153-14-10, C.R.S., 1963.
“3. That the failure of Elizabeth Goldstein to file a Petition at an earlier date was without the fault of Elizabeth Goldstein, and that the same was caused by and the result of her physical incapacity and mental condition.
“4. That the allegations of the Petition are true and that the determination of Elizabeth Goldstein to take and receive one-half of the Testator’s Estate is a prudent determination.
“WHEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that the option of Elizabeth Goldstein to take and receive one-half of the Testator’s Estate as provided in said 153-14-10 is hereby ratified, approved, and confirmed, and IT IS SO ORDERED nunc pro tunc June 9, 1967.”

On March 8, 1968 the executrix filed the Federal estate tax return claiming the marital deduction of one-half of the decedent’s estate. The Commissioner of Internal Revenue disallowed the deduction except as to the value of insurance policies on the decedent’s life payable to his widow. A deficiency was assessed on December 23,1969. The executrix filed a petition with the Tax Court for “rede-termination of assessment.” Mrs. Gold-stein died before the matter was tried in the Tax Court.

In the proceedings before the Tax Court the physical and mental condition of Mrs. Goldstein was established and it was proved that she could not understand the making of an election to take under the statute and against the will of her husband at any time following the husband’s death. The Tax Court held that the nunc pro tunc order was not permitted by the law of Colorado. The two 6-month statutory periods terminated on January 3, 1968 more than two months prior, to the entry of the nunc pro tunc order. The decision of the Tax Court was in favor of the Commissioner and held that the deficiency was proper. The estate has brought the matter before us for review. The issue here is whether the order electing against the will is valid.

Although the Federal law fixes the Federal tax incidences of property transfers generated by death, it is the state law that determines the nature of such transfers and the manner by which they are effected. Burnet v. Harmel, 287 U.S. 103, 53 S.Ct. 74, 77 L.Ed. 199; United States v. Mitchell, 403 U.S. 190, 91 S.Ct. 1763, 29 L.Ed.2d 406. Since there is no decision of the Supreme Court of Colorado which is controlling upon the issue here presented and no well settled precedents of less authoritative tribunals, we are to determine as best we can the Colorado rule which should be applied in answering the question posed by this appeal. Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886.

The Tax Court, in its opinion relied upon Sheely v. Sheely, 102 Colo. 194, 78 P.2d 378, decided in 1938, to sustain its conclusion that the Goldstein marital deduction should be disallowed. The factual situation in the Sheely case was quite different from the case here. In Sheely the decedent’s widow, about ten months after the probate of her husband’s will, filed a petition in the probate court attempting to elect to take against the will and under the statute. She asserted that she had been induced by undue influence and fraud to postpone her election until after the expiration of the 6-months period. The Colorado trial court resolved the fact issues of fraud and undue influence against the widow and the Colorado Supreme Court held that this finding was binding upon it and upon the widow.

In its opinion the Colorado court stated:

“We know of no valid reason for regarding the provision as merely directory. To do so would apparently violate the emphatic language used, and be equivalent to judicial legislation, which is beyond our lawful power.” 78 P.2d at 379.

This dictum, and such it clearly is, was modified by the statement that “the question whether undue influence or fraud can ever repeal or suspend the statutory limitation of six months for filing a widow’s election is not before us.” Id.

Dicta alone, while entitled to consideration, is not of itself an authoritative expression of the law of the state. 1A Moore’s Federal Practice 3313, Par. 3.07 [2]. Three of the seven judges of the court deciding the Sheely case concurred in the trial court’s ruling on the widow’s election but dissented as to the remainder of the opinion. This results in a further dilution of the persuasive effect, if any, of Sheely.

The Sheely case refers to the “statutory limitation of six months.” In a later decision it was stated that “legislative acts of this character are simply statutes of limitation fixing a definite time after which an election, if filed, cannot be considered.” In re Stitzer’s Estate, 103 Colo. 529, 87 P.2d 745.

It is appropriate, then, to consider whether the statutory period of six months has been tolled or otherwise extended under Colorado law for the benefit of Mrs. Goldstein by reason of her mental condition. The section of the Colorado Revised Statutes creating the right of election and the built-in modifications of it is:

“153-5-4. Surviving spouse may elect. — (1) Notwithstanding the provisions of a testator’s will, his surviving spouse shall have the option to take and receive one-half of the testator’s estate, as provided in section 153-14-10; provided, that such surviving spouse exercises such option by filing in the court in which the testator’s will is admitted to probate, within six months thereafter, his election in writing to take and receive one-half of said estate. The failure to exercise such option within said period of six months shall be conclusive evidence of the consent of the surviving spouse to the provisions of such will.
“(2) If the surviving spouse is incompetent, it shall be the duty of his personal representative, or if he has no personal representative or if the personal representative has an adverse interest, a special fiduciary appointed by the court, to ascertain the value of the benefits provided by the will and the value of the rights secured by statute, which findings shall be reported to the court and hearing had thereon. Notice of the time and place of the hearing shall be given to the surviving spouse, to his personal representative or special fiduciary, if any, and to such other persons and in such manner as the court may direct. After the hearing on the report, the court, within six months from the admission of the will to probate, shall make an election for such spouse to take under the will or under the statute, as the court may find to be more advantageous to such spouse, which election shall be deemed as effectual as if made by a spouse not under disability.
“(3) If an election is made as provided in this section, the executor or administrator with the will annexed shall have the same powers with respect to the administration of all property of the testator’s estate as if the election had not been made.
“(4) (a) Despite the provisions in the last sentence of subsection (1) of this section, if the surviving spouse, or his personal representative, or special fiduciary, shall file with the court a petition alleging that, without fault of the petitioner, he has been unable to secure sufficient information from the court files and other sources available to petitioner to make possible a prudent determination of the advantages or disadvantages of election, and the court finds the allegation in the petition to be true, the court may extend the period within which election may be made by one six-month period. Such petition must be filed at least thirty days prior to the expiration date of the period of time sought to be extended. The court may fix and determine within its discretion the duration of the extended period of time within which the election may be made, except that the extension of time shall not exceed six months. No extension shall be granted under this subsection (4) without a hearing preceded by notice to the personal representative and to such other persons and in such manner as the court may direct, such hearing to be held prior to the expiration date of the period of time sought to be extended.
“(b) This subsection (4) shall be applicable to the estates of all decedents dying after the effective date of this subsection (4).”

Several of the terms used in the Chapter of the Colorado statutes, of which the foregoing is a part have been construed by the legislature. Among the statutory definitions is the following:

“ ‘Mental incompetent,’ ‘incompetent person,’ ‘incompetent,’ or ‘mentally ill person’ denotes a person who has been adjudicated mentally ill or mentally deficient, or who by the laws of this state is designated as a lunatic, insane person, incompetent, mental incompetent, incapable or feeble-minded, or who has been found in an appropriate proceeding to be unable or unfit to manage his own property.” Colo.Rev. Stat. § 153-1-1(7).

The reference to a person who by the laws of the state is designated as, among others, incompetent requires a look at the chapter relating to Insane and other Mental Defectives where the section containing definitions provides:

“(a) As used in this article and wherever now or hereafter used in the statutes of the state of Colorado according to their context, the following terms shall have the following meanings:
“(b) ‘Mentally ill person’ shall mean a person afflicted with disease, infirmity, old age, or disorder, which impairs his mental or emotional functions to a degree sufficient to require protection, supervision, treatment, or confinement, for his own welfare or for the welfare or safety of others, or who, by reason thereof, lacks sufficient control, judgment, and discretion to manage his own property or affairs. The terms, ‘insane person,’ ‘mental incompetent’ or ‘lunatic,’ shall hereafter be deemed to mean and be included within the words, ‘mentally ill person,’ within the present statutes of the state of Colorado, unless context otherwise indicates a mentally deficient person.” Colo.Rev.Stat. § 71-l-l-(l).

It seems that there can be no question but that Elizabeth Goldstein was an incompetent at the time of her husband’s death and her condition did not change. She had no personal representative who might have made an election on her behalf. Although the executrix-trustee, who was Goldstein’s daughter, had petitioned the probate court for approval of the use of estate funds for her mother’s care, there was nothing in the petition nor elsewhere in the probate court proceedings which could have generated the appointment of a special fiduciary to act with respect to her election. Since the executrix-trustee was not the personal representative, of her mother, no consideration need be given as to whether she had an interest as the remainderman of the trust which was adverse to her mother. Two 6-month periods after the probate of the will had elapsed and nothing had happened with respect to an election by Mrs. Goldstein except the running of time.

The Commissioner reminds the Court of the dictum in Sheely, supra, that the provisions of the election statute are mandatory and not merely directory. It has been noted that the difference between mandatory and directory statutes involves a matter of degree instead of separate, mutually exclusive characteristics. 1A Sands, Sutherland Statutory Construction 301, § 25.04. It is to be remembered that in Sheely the gate was left ajar for a judicial determination that a valid election might be made out of time under justifiable circumstances. The time and manner of the making of an election by one in Mrs. Goldstein’s situation are not expressly covered by the statute. The Commissioner would hold her to the letter of the law as though she had no mental affliction. We do not believe the Colorado courts would agree. “The obvious purpose of the statute,” according to the Supreme Court of Colorado, “is to assure timely notice to the court, to those in charge of the administration of the estate, and to all persons interested therein, that the surviving spouse is dissatisfied with the will and elects to take and receive one-half of the estate under the statute.” In re Stitzer’s Estate, 103 Colo. 529, 87 P. 2d 745. None who were entitled to notice were prejudiced by the delay in the making of the election. The United States was not prejudiced, if in any event it could have been, as the election was made before, although but one day before, the date for the filing of the estate tax return. The only prejudice was to the revenue.

Another section of the Colorado Statutes was enacted in the language following:

“(a) Whenever in any of the statutes of the state of Colorado heretofore or hereafter enacted, a limitation is fixed upon the time within which a right of action, right of redemption, or any other right, may be asserted either affirmatively or by way of defense, or an action, suit or proceeding based thereon, may be brought, commenced, maintained or prosecuted, and the true owner of said right is a person under disability at the time such right accrues, then:
“(b) If such person under disability is represented by a legal representative at the time said right accrues, or if a legal representative is appointed for such person under disability at any time after said right accrues and prior to the termination of such disability, the applicable statute of limitations shall run against such person under disability in the same manner, for the same period, and with the same effect as it runs against persons not under disability. Such legal representative, or his successor in trust, in any event shall be allowed not less than two years after his appointment within which to take action on behalf of such person under disability, even though such two year period shall expire after the expiration of the period fixed by the applicable statute of limitations.” Colo.Rev.Stat. § 87-2-3(1).

Mrs. Goldstein’s right of election was a right which “may be asserted” and the statutory fixing of the time for asserting it was a “limitation upon the time” for asserting it. It seems that Mrs. Goldstein’s right of election was extant at the time it was asserted and exercised. Whether it would have been existing so as to permit an estate tax marital deduction if it had been exercised two days later after the time for filing an estate tax return is a question we need not consider. This conclusion is supported by decisions of the Colorado Supreme Court relieving incompetents, whether or not so adjudicated, and whether or not having a legal representative, from the bar of a statutory time limitation.

The Colorado courts are disposed to treat incompetents with all due regard for their condition, whether or not they have been adjudicated incompetent. For example, in Hunter v. Williams, 96 Colo. 435, 44 P.2d 509, the court excused an incompetent from laches and relieved him from the operation of limitations. Similarly in Browne v. Smith, 119 Colo. 469, 205 P.2d 239, the court held that the statute of limitations in an action to recover on a promissory note was tolled by the plaintiff’s incompetence, even though there had been no adjudication of incompetence during the period in question. In Klamm Shell v. Berg, 165 Colo. 540, 441 P.2d 10, the court held that the statute of limitations was tolled even though the incompetence did not arise until after the tort in issue had been committed, thereby fashioning an equitable exception to the statutory rule requiring that insanity exist at the time the cause of action accrues for the dire circumstances of that case. The Court, in Colorado Springs v. Colburn, 102 Colo. 483, 81 P.2d 397, excused failure to give notice of an injury to a city within the time fixed by statute because of the physical and mental incapacity of the plaintiff. While the cited cases may be distinguished in one way or another from the case now before this Court, they nonetheless demonstrate that the Colorado court has not hesitated to grant relief from time requirements imposed by statute of mentally incompetent persons. The conclusions here reached are not in conflict with Jacob v. City of Colorado Springs, Colo., 485 P.2d 889; Weidensaul v. Industrial Commission, 107 Colo. 28,108 P.2d 234.

Not all jurisdictions would decide the question as we believe Colorado would decide it. See Annotation, Time within which Election must be made to take under or against Will, 3 A.L.R.3d 119. The line of cleavage seems to be between strict and liberal attitudes toward the problem. We align Colorado with those which adhere to the latter. Other decisions adopting similar views are Wolcott v. Wolcott, Miss., 184 So.2d 381; In re Hansen’s Guardianship, 67 Utah 256, 247 P. 481, and Gaster v. Gaster, 90 Neb. 529, 134 N.W. 235.

The order of the probate court provided that it should be entered nunc pro tunc. It is immaterial whether the order, by its terms, related back so as to make it effective within the statutory time period, or that the order declare that the time is enlarged. This is not the kind of situation where substance yields to form. The election made for Mrs. Goldstein to take one-half of her husband’s estate is a valid one.

It follows that the decision of the Tax Court is reversed and the cause remanded for the entry of an appropriate order providing for the allowance of the marital deduction computed after giving effect to the election. It is not to be assumed that any general statement herein is the pronouncement of a broad principle. It is intended to decide the particular case on its peculiar facts and no more.

Reversed and remanded.


author: DUNIWAY, Circuit Judge: ELY, Circuit Judge

text:
    YUEN SANG LOW et al., Plaintiffs-Appellees, v. The ATTORNEY GENERAL OF the UNITED STATES, and Cecil W. Fullilove, District Director, San Francisco District, Immigration and Naturalization Service, Defendants-Appellants.
    No. 26741.
    United States Court of Appeals, 'Ninth Circuit.
    May 30, 1973.

      David R. Urdan, Chief Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., Stephen M. Suffin, Trial Atty., I&NS, San Francisco, Cal., for defendants-appellants.
    Joseph S. Hertogs (argued), of Jackson & Hertogs, San Francisco, Cal., for plaintiffs-appellees.
    Before DUNIWAY and ELY, Circuit Judges, and BYRNE, Jr., District Judge.

       Honorable Wm. Matthew Byrne, Jr., United States District Judge, Central District of California, sitting by designation.

   DUNIWAY, Circuit Judge:

OPINION

The three appellees in this case are aliens who sought admission into the United States more than twenty years ago. They claimed to be citizens, but those claims were rejected, and each of them was ordered excluded by the Board of Immigration Appeals. While those proceedings were pending, each of them was paroled into the United States, pursuant to 8 U.S.C. § 1182(d) (5). For reasons which are not explained in the record, they have been in the United States on parole status ever since.

Each alien submitted an application for a suspension of deportation and adjustment of status to that of an alien lawfully admitted for permanent residence under section 244(a) (1) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1). The District Director of the Immigration and Naturalization Service refused to accept the applications on the ground that these aliens are not eligible for the relief afforded by that section. The aliens then sought review in the district court under 5 U.S. C. § 701, et seq. The court granted their motion for summary judgment. It found that they had been “physically present” in the United States in excess of seven years, as required by section 244(a)(1), and that they were therefore entitled to file an application for suspension of deportation. We reverse.

Section 244(a) of the Act provides in pertinent part:

“ . . . [T]he Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the ease of an alien who applies to the Attorney General for suspension of deportation and—
(1) is deportable under any law of the United States . . . ; has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application. . . . ”

To bring themselves within this section, the aliens must satisfy two requirements : (1) They must have been “physically present in the United States” for the required period and, (2) they must be “deportable.” In this case the aliens do not meet either requirement.

1. If the words “physically present” are to be taken literally, it is obvious that the aliens meet this requirement. However, we are in the never-never land of the Immigration and Nationality Act, where plain words do not always mean what they say.

In Leng May Ma v. Barber, 1958, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246, the Court had before it the question whether an alien who, like the aliens in this case, was considered excludable but had been paroled into the United States, was “within” the United States under section 243(h) of the Act, 8 U.S.C. § 1253(h), and so entitled to seek withholding of deportation under that section. Surely, under the literal meaning of “within” the alien was “within” the United States. But the Court held that legally she was not.

The Court pointed to the long standing distinction “between those aliens who have come to our shores seeking admission . . . and those who are within the United States after an entry, irrespective of its legality.” (P. 187, 78 S.Ct. p. 1073.) It further said:

“In the latter instance the Court has recognized additional rights and privileges not extended to those in the former category who are merely ‘on the threshold of initial entry’. Shaughnessy v. United States ex rel. Mezei, 1953, 345 U.S. 206, 212, 73 S.Ct. 625, 629, 97 L.Ed. 956. See Kwong Hai Chew v. Colding, 1953, 344 U.S. 590, 596, 73 S.Ct. 472, 477, 97 L.Ed. 576. The distinction was carefully preserved in Title II of the Immigration and Nationality Act. Chapter 4 subjects those seeking admission to ‘exclusion proceedings’ to determine whether they ‘shall be allowed to enter or shall be excluded and deported.’ 66 Stat. 200, 8 U.S.C. § 1226(a). On the other hand, Chapter 5 concerns itself with aliens who have already entered the United States and are subject to ‘expulsion,’ as distinguished from ‘exclusion,’ if they fall within certain ‘general classes of deportable aliens.’ 66 Stat. 204, 8 U.S.C. § 1251. Proceedings for expulsion under Chapter 5 are commonly referred to as ‘deportation proceedings.’ Parenthetically, the word ‘deportation’ appears also in Chapter 4 to refer to the return of excluded aliens from the country, but its use there reflects none of the technical gloss accompanying its use as a word of art in Chapter 5.”

The Court then cited (p. 188, 78 S.Ct. p. 1074) a list of cases holding that aliens held in custody pending determination of their admissibility have not made “an entry though the alien is physically within the United States.” “It seems quite clear that an alien so confined would not be ‘within the United States’ for purposes of § 243(h).” (P. 188, 78 S.Ct. p. 1074.) The Court went on to hold that parole, as a substitute for custody, did not change the result; the parolee still was not “within” the United States. It relied in part on section 212(d) (5) of the Act, (8 U.S.C. § 1182(d)(5)), which states that parole “shall not be regarded as an admission of the alien,” and that, after return to custody, the alien’s case “shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.”

Leng May Ma requires the same result here. Section 244, like section 243, is a part of Chapter 5, not Chapter 4. The use of different language in section 244 does not change the result. It is true that in Leng May Ma the court said that detained aliens are “physically within” the United States, and the aliens seek to distinguish the case on that ground. But the distinction will not wash.

Before the adoption of the Act in 1952, the statute provided that an alien who had “resided continuously in the United States for seven years or more” was eligible to apply for suspension of deportation. (Act of July 1, 1948, 62 Stat. 1206.) It is clear that if residence were still the criterion, the aliens could not meet it. In Kaplan v. Tod, 1925, 267 U.S. 228, 45 S.Ct. 257, 69 L.Ed. 585 (cited with approval in Leng May Ma, supra, 357 U.S. at p. 189, 78 S.Ct. at p. 1074), which involved a paroled alien, Mr. Justice Holmes said;

“The appellant could not lawfully have landed in the United States . . ., and until she legally landed ‘could not have dwelt within the United States’. . . . When her prison bounds were enlarged by committing her to the custody of the Hebrew Society, the nature of her stay within the territory was not changed. She was still in theory at the boundary line and had gained no foothold in the United States.” (P. 230, 45 S.Ct. p. 257.)

The seven years’ residence language of the statute was criticized on the ground that an alien could enter the United States and establish residence and then go abroad for an extended period while technically maintaining residence here and thus remain eligible for suspension of deportation. It was in response to that criticism that the Congress in 1952 modified the statute by including the “physically present . . . for a continuous period” requirement. See S. Rep.No.1515, 81st Cong.2d Sess., 595-604 (1950). Thus the purpose of Congress was to tighten the statute insofar as it applied to aliens who had “entered” the United States, not to extend the application of the statute to those who had been excluded but paroled into the United •States pending final determination of their excludability. The decision in Leng May Ma is, we think, just as applicable to the “physically present in the United States” language of section 244 as it is to the “within the United States” language of section 243.

2. Assuming, however, that we are in error in this respect, Leng May Ma would nevertheless require a reversal in this case. This is because the aliens are not “deportable” within the meaning of section 244(a). This position at first blush seems as anomalous as our holding that these aliens are not technically physically present in the United States. The law, however, is that aliens paroled into the United States have not been admitted into the United States. See 8 U.S.C. § 1182 (d)(5). They are persons subject to “exclusion” which, as is pointed out in Leng May Ma, supra, 357 U.S. p. 187, 78 S.Ct. 1072, is to be distinguished from “expulsion” or “deportation.” It is true that, as persons subject to exclusion, under Chapter 4 of Title II of the Act, 8 U.S.C. §§ 1221-1230, these aliens are subject to “immediate deportation.” See 8 U.S.C. § 1227. Nevertheless, they are not “deportable under any law of the United States” within the meaning of section 244(a).

In Leng May Ma, supra, as we have, seen, the Court held that one of the rights and privileges unavailable to excludees was application for withholding of deportation under section 243(h). The rationale is equally applicable to section 244(a). The Court held that the fact that Chapter 4 provides for the “deportation” of excludees does not render such excludees “deportable” as that term is used in Chapter 5. The Court found it significant that the provision for withholding of deportation, (§ 243(h)), was found in Chapter 5. So is the provision of section 244(a) in question here. Under the compulsion of Leng May Ma, supra, we hold that the appealing aliens are not deportable within the meaning of section 244(a). That term, as Leng May Ma holds, is a word of art and does not cover excludable aliens who have been paroled into the country.

We can find nothing in the law that would permit us to hold that section 244(a) becomes applicable if parole continues for an inordinate length of time. We are regretfully constrained to hold that suspension of deportation under section 244(a) is not a right or privilege extended to those paroled into the United States and who are therefore legally merely on the threshold of initial entry.

The judgment is reversed with directions to enter summary judgment in favor of the appellants.

ELY, Circuit Judge

(dissenting) :

I respectfully dissent. Whenever there is a reasonable doubt as to the proper interpretation of statutes granting discretionary power to the Attorney General in respect to the deportation of aliens, the doubt should be resolved in favor of the aliens. See Barber v. Gonzales, 347 U.S. 637, 74 S.Ct. 822, 98 L.Ed. 1009 (1954); Fong Haw Tan v. Phelan, 333 U.S. 6, 68 S.Ct. 374, 92 L.Ed. 433 (1948). See also Errico v. I&NS, 349 F.2d 541 (9th Cir. 1965), 385 U.S. 214, 87 S.Ct. 473, 17 L.Ed.2d 318 (1966); Garcia-Gonzales v. I&NS, 344 F.2d 804 (9th Cir. 1965).

My Brother Duniway’s opinion is, typically, written with the utmost care; nevertheless, I cannot subscribe to the technicality of its reasoning. In granting relief to the aliens here involved, District Judge Zirpoli wrote, in part:

“The statute under which petitioners seek relief from the Immigration and Naturalization Service’in this case is Section 1254(a) of Title 8, United States Code Annotated. Within the meaning of that section the petitioners, in the instant -cases, have been physically present in the United States in excess of the prescribed number of years and are therefore entitled to seek the relief prayed for and are entitled to a hearing thereon from the Attorney General of the United States.
“The case of Leng May Ma v. Barber, 1958, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246, applies to Section 1253 (h) of Title 8, United States Code, and is not, in this Court’s view, controlling in its interpretation of Section 1254(a).” (emphasis in original)

Agreeing with Judge Zirpoli, I would affirm his “Order and Judgment” remanding the cause for the Attorney General’s consideration of the appellees’ applications for suspension of deportation.


author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Pedro MARTINEZ, Defendant, Appellant.
    No. 72-1242.
    United States Court of Appeals, First Circuit.
    Heard April 9, 1973.
    Decided May 8, 1973.

      Martin Kantrovitz, Boston, Mass., by appointment of the Court, for appellant.
    Robert B. Collings, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

Convicted of distributing heroin in violation of 21 U.S.C. § 841(a)(1), Appellant alleges that the district court erred in permitting him to be joined in the indictment and tried with other defendants, and that the evidence was insufficient to support the verdict. We affirm.

The two-count indictment charged one Felix Garcia and one Anna Rodriguez with distributing heroin at Salem, Massachusetts, on March 9,. 1972 (Count One) and on March 14, 1972 (Count Two). Persons named Carrion and Olmo were joined with Garcia and Rodriguez as co-defendants in Count One. Appellant Martinez was joined with Garcia and Rodriguez as a co-defendant in Count Two.

Garcia and Rodriguez did not appear for arraignment; they were fugitives through the time of trial. Only Carrion, Olmo and Appellant were arraigned and actually tried at a joint trial.

After arraignment and before the trial, Appellant moved to sever Count Two from Count One on the ground that the trial of Count One, in which he was not named, would be prejudicial. The motion was denied.

The government’s principal witness was an undercover agent who gave evidence on both Counts. He testified to going to apartment 8, 64 Palmer Street, Salem, on March 9, 1972, and purchasing a large quantity of heroin from Garcia and Rodriguez. He testified in considerable detail to discussions concerning price and quantity. Carrion and Olmo, who were present some of the time, helped wrap the drug in separate bundles. After the purchase, the agent arranged with Garcia (also known as “Junior”), Anna Rodriguez, and a man named “Peter” for a future meeting. Appellant was not connected with the March 9, 1972, transaction. During the agent’s testimony, the Court cautioned the jury,

You will remember in the government lawyer’s opening he said there is no charge against Mr. Martinez, the defendant third away from you, on the basis of evidence having to do with March 9th, in any event, so obviously you cannot consider this testimony against Mr. Martinez.

Similar cautionary instructions were given by the Court at other times. Both the prosecutor and Appellant’s attorney emphasized to the jury that Martinez was not involved in the March 9 purchase and that “Peter” was not Pedro Martinez.

The undercover agent testified to meeting again with “Junior” (Garcia) on March 14, this time on Perkins Street, Salem. Garcia was with Appellant and introduced him to the agent. The agent, in Appellant’s presence, asked Garcia if he had spoken to Peter. Garcia said he had not. The agent said he wanted to purchase ten bundles of heroin. Garcia replied that he could provide them. The conversation then turned to price, the agent saying he did not want to pay the price that he had paid during their prior negotiations, but only $125 a bundle, or $1,250 for ten bundles.

Garcia told the agent to wait, that it would take him a half hour to get the bundles. Garcia and Appellant then left, the agent returning to his automobile in which a second undercover agent was sitting.

A half hour later, the agents saw both Junior and Appellant walk up Perkins Street, stop momentarily to speak to an unidentified white male, and enter the lot where the agents had parked. The principal agent got out of the car and spoke further with Garcia, in the presence of Appellant. The white male remained in view, stationary. •

Garcia proposed a new deal. He would provide 24 spoons of heroin at $60 a spoon. It would be easier that way, he said; the agent would make more money. The agent said he did not wish to pay $60 a spoon but would pay $50.

After conversing in Spanish with Appellant for a few moments, Garcia agreed. Then the white male started to enter the parking lot. Both Appellant and Garcia motioned for him to stay where he was, Garcia saying words to the effect, “Don’t come over here.” Appellant, who was on Garcia’s right side, started to walk towards the white male and raised his hand, his palm facing outward towards the man. The latter stopped.

Garcia and Appellant then got into the agents’ car, the agents in front, Garcia and Appellant in back. The agent and Garcia continued to discuss the proposed purchase. The agent wanted to know whether he would still receive a two-cut of heroin rather than a three-cut. Garcia said it would be a two-cut and would be good heroin. The agent said he was puzzled about how much money he could make from the new deal. Garcia, writing figures on a piece of paper, engaged in conversation with Appellant. Once during the figuring Appellant said to Garcia, “No, no,” and pointed to some of the figures on the paper. Garcia crossed several of them out, and wrote again in the same area. Garcia told the agent that by purchasing at $50 a spoon he would be paying $1,200; by converting and packaging the heroin himself, he could receive $125 or better a bundle, and could get much more if he packed it in dime quantities. While the paper was not handed to him, the agent saw some of the figures. They were mostly multiplications, e. g., x bags times x price equals a certain price.

The agent agreed that it would be a profitable deal if the heroin was good, and Garcia said, “Don’t worry it will be good dope.” Garcia told the agent to drive to the intersection of Palmer and Pingree Streets. Garcia said it would take about a half hour for delivery. Garcia and Appellant left the car, proceeding to Congress Street.

Another government witness testified to seeing Appellant and Garcia enter a Congress Street grocery store at about this time. He observed them purchase two boxes of aluminum foil.

Garcia, alone, returned to the car where the two agents were waiting. He led the principal agent to apartment 8, 64 Palmer Street, where the purchase of heroin was consummated. During the transaction, the agent observed an open box of aluminum foil in the room and another roll of aluminum foil not in a box. Garcia used the foil to package the heroin powder. The agent received 24 packets, each with a spoonful of heroin, for $l;200. After the purchase, the agent discussed future transactions with Garcia.

The principal agent’s testimony was essentially confirmed by testimony of his companion in the car. The latter also testified to speaking with Appellant after his arrest. Telling him that he spoke “a little” English, Appellant answered in English several untranslated questions. One such answer was that he had had three years of school in Puerto Rico.

Appellant first contends that he was improperly charged in the same indictment with the defendants named in Count One. Under Fed.R.Crim.P. 8(b) “Two or more defendants may be charged in the same indictment . if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” Thus joinder of Appellant with the others was permissible only if the two criminal acts on March 9 and March 14 were part of “the same series of acts or transactions.”

A “series” means something more than similar acts. King v. United States, 355 F.2d 700, 703 (1st Cir. 1966). Rule 8(b) strikes a compromise between each defendant’s right to have his own guilt considered separately, and the practical benefit to the government and the court of a consolidated proceeding. The defendant’s right prevails unless there are presumptive benefits to 'the government from “joint. proof of facts relevant to all the acts or transactions.”

Rule 8(,b) is not limited to situations in which proof of the other criminal transaction would be admissible in a separate trial. It goes beyond, to others, the excuse being the benefit to the court. But to offset the prejudice where multiple defendants are being joined even though they did not engage in a joint act, such as conspiracy . . . this possibility of benefit should explicitly appear from the indictment or from other representations by the government before .trial.

Id. at 704.

In the present case, the indictment, supplemented by the government’s bill of particulars, charged two criminal acts five days apart involving the distributing of heroin by the same two defendants, Garcia and Rodriguez. Both acts were particularized as occurring at apartment 8, Palmer Street, Salem. These factors, on their face, suggested a joint criminal enterprise by Garcia and Rodriguez, viz. that the heroin transactions were not isolated, but belonged to a series undertaken by common defendants from the same address. The interrelation of the two offenses was confirmed by evidence at trial. Both sales were to the same witness; it appears that the later meeting between Garcia and the agent was arranged on March 9. After the March 14 sale, Garcia and the agent discussed further heroin dealings. Had Garcia not defaulted, proof of what occurred on March 9 was likely to be admissible on the question of his guilt under Count Two. See Green v. United States, 176 F.2d 541, 543-544 (1st Cir. 1949), 2 Wigmore on Evidence § 304 (3rd ed. 1940). Similarly, Garcia’s March 14 activities, including his discussion with the agent showing knowledge of the March 9 sale, was relevant to his guilt under Count One. We find no misjoinder of counts in the single indictment. See United States v. Scott, 413 F.2d 932 (7th Cir. 1969), cert. denied 396 U.S. 1006, 90 S.Ct. 560, 24 L.Ed.2d 498 (1970).

Appellant argues that since Garcia did not participate in the trial, the presumptive benefits to the government of joinder evaporated. In King we spoke of such benefits as a rationale for Rule 8(b). But we did not suggest that a multiparty indictment which is correct when returned may become insufficient because one or more of the defendants later flees or pleads. Nothing but confusion would result if an indictment’s sufficiency turned on unpredictable later events beyond the government’s control. The government is entitled to charge and join parties on the basis of what it reasonably anticipates proving against all. The later unavailability of some may be a further factor to be considered by the Court if requested under Rule 14, on grounds of prejudice, to grant separate trials. But it does not constitute grounds for a Rule 8(b) attack.

Appellant next contends that he was prejudiced by denial of his pre-trial motion for severance of Count Two. Rule 14 provides: “If it appears that a defendant ... is prejudiced by a joinder of offenses or of defendants in an indictment . . . the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.”

As Appellant recognizes, prejudice means more than just a better chance of acquittal at a separate trial. See Tillman v. United States, 406 F.2d 930, 935 (5th Cir. 1969). There was here no likelihood of confusion between the proof applicable to Olmo and Carrion and that applicable to Appellant. United States v. Clayton, 450 F.2d 16, 18-19 (1st Cir. 1971) cert. denied 405 U.S. 975, 92 S.Ct. 1200, 31 L.Ed.2d 250 (1972). Nor is this a case where proof of the same defendant’s misconduct under one count may prejudice his chances for acquittal under another count. None of the evidence in the first count pertained to defendant. Cf. Gregory v. United States, 125 U.S.App.D.C. 140, 369 F.2d 185, 189 (1966).

It is true that Olmo and Carrion were shown to have packaged heroin and to have engaged in conduct definitely tying them, as aiders and abettors, to the March 9 sale. Appellant contends that this stronger proof of their complicity on March 9 may have influenced the jury to convict him, on lesser evidence, of complicity on March 14. But the evidence of Garcia’s guilt was as vivid for March 14 as for March 9. Garcia would have emerged a “bad man” whether or not Count Two had been tried separately; and it was his companionship that cast a cloud over Appellant. That Olmo and Carrion aided' and abetted Garcia on March 9 had no tendency to show that Appellant did so five days later. As we find no reasonable likelihood of prejudice, we do not find error in the Court’s denial of the motion for a separate trial.

Appellant contends, finally, that his motion for a judgment of acquittal should have been allowed. The contention requires us to review the sufficiency of the evidence, but in a light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Appellant was not present at the actual transfer of heroin from Garcia to the agent. His guilt, therefore, turns on the theory that he aided and abetted Garcia. 18 U.S.C. § 2. One may be found guilty as an aider and abettor although the government is unable to proceed in the same ease against the principal. U. S. v. Hoffa, 349 F.2d 20, 40 (6th Cir. 1965), aff’d, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), rehearing denied, 386 U.S. 951, 87 S.Ct. 970, 17 L. Ed.2d 880 (1967). However, the government must prove that the principal committed the crime. Shuttlesworth v. City of Birmingham, 373 U.S. 262, 265, 83 S.Ct. 1130, 10 L.Ed.2d 335 (1963). Garcia’s guilt as principal was; of course, supported by very substantial evidence.

For Appellant to be found guilty, it was necessary to establish, as the district court instructed, that he “associate [d] himself with the venture, that he participate [d] in it as something he wish[ed] to bring about, that he [sought] by his action to make it succeed.” United States v. Peoni, 100 F.2d 401, 402 (2nd Cir. 1938). It is usually said that mere presence is not enough; however, there are circumstances where presence itself implies participation — as where a 250-pound bruiser stands silently by during an extortion attempt, or a companion stands by during a robbery, ready to sound a warning or give other aid if required. See United States v. Garguilo, 310 F.2d 249 (2nd Cir. 1962). It must be shown, in any event, that Appellant was “a participant rather than merely a knowing spectator.” Garguilo, supra, 310 F.2d at 254.

There was persuasive evidence of participation. Appellant did not merely happen on the scene, or stand idly by, while the agent and Garcia negotiated. He was introduced to the agent by Garcia at the outset of negotiations. After the initial conversation, he and Garcia left together, Garcia indicating that he would return shortly with the heroin. Appellant reappeared with Garcia, the latter making a counter-proposal to sell 24 spoons. When the agent demanded a lower price, Garcia first spoke in Spanish to Appellant before agreeing. Appellant motioned the white male away, an action which could be taken as aiding Garcia by keeping the conversations private. The jury could have inferred that, had Appellant been a mere bystander, he would not have joined the two agents and Garcia in the privacy of the ear while the terms of the sale were further discussed. His interjection of “No, no” during these discussions, followed by Garcia’s correction of figures on the paper relating to the price of heroin, implied that he was counselling Garcia. His accompanying of Garcia to the store to buy aluminum foil, an innocent act by itself, in this setting implied complicity.

Whether Appellant understood what was going on was a fact question which the jury was entitled to resolve against him. There was evidence that he understood some English; his “No, no” interjection, and his conversations with Garcia in Spanish at points during the negotiations, implied that he was cognizant of what was being discussed. We conclude that there was sufficient evidence for the jury to find that he knowingly aided and counselled Garcia in the heroin transaction.

Affirmed.

      . The final sentence of Rule 8(b) reads, “Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.”