author: MOORE, Senior Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. FLEMING’S EXPRESS, INC., Defendant-Appellant.
    No. 74-1105.
    United States Court of Appeals, First Circuit.
    Argued Sept. 10, 1974.
    Decided Dec. 26, 1974.
    Robert G. Parks, Needham, Mass., for appellant.
    J. F. Walker, I.C.C., with whom James N. Gabriel, U. S. Atty., and Wayne B. Hollingsworth, Asst. U. S. Atty., Boston, Mass., were on brief, for appellee.
    Before COFFIN, Chief Judge, MOORE, Senior Circuit Judge, and McENTEE, Circuit Judge.

       Of the Second Circuit sitting by designation.

   MOORE, Senior Circuit Judge.

This is an appeal from a determination in the District Court of Massachusetts that Fleming’s Express, Inc. (Fleming’s) is guilty of a misdemeanor under the Interstate Commerce Act, 49 U.S.C. Sections 5(4) and 10(1), as a result of its acquisition of Shipper’s Service, Inc. (Shipper’s) without appropriate approval from the Interstate Commerce Commission (ICC).

The facts, according to stipulation of the parties, are straightforward and lead to an apparent conflict between Section 5(4) as it has been interpreted since 1933 and Section 5(10) as amended in 1966. Two common carriers, Fleming’s and Shipper’s, agreed to merge through sale of all of Shipper’s stock to Fleming’s. The purchase and sale agreement was entered into on December 8, 1970 and a check representing part payment for the stock, dated December 5, 1970 was presented by Fleming’s to Shipper’s. The parties agree that until December 29, 1970, the “closing date” of the transaction, Fleming’s did not exercise the control or management prohibited by Section 5(4), nor did it have the power to exercise such control. Fleming’s and Shipper’s did not seek the ICC approval provided in Section 5(2) of the Act, 49 U.S.C. Section 5(2), but considering themselves exempt pursuant to Section 5(10), they consummated the stock transfer without such approval.

Shipper’s had been affiliated with Acme Transfer and Storage Co., Inc. (Acme) at least from June 29, 1969 to December 16, 1970. On December 16, 1970, Acme voluntarily gave up its authority to act as an Interstate Motor Common Carrier.

Neither Fleming’s nor Shipper’s revenues alone or combined with each other exceeded $300,000. for the statutory period. However, when the revenues of Shipper’s include revenues of its affiliate Acme for any of the twelve-month consecutive periods ending six months prior to December 5, December 8, December 16 or December 29, the amount exceeds $300,000.

In March, 1973, the government obtained a two count information charging Fleming’s with violation of 49 U.S.C. Sections 5(4) and 10(1) by agreeing on December 8 to consolidate on December 29, 1970 without ICC approval and authorization and by wilfully continuing to control and manage two motor vehicle common carriers without ICC approval and authorization until March 19, 1973.

The government and Fleming’s agree that the issue of Fleming’s guilt turns on whether or not Acme’s revenues are to be counted in ascertaining the revenues of Shipper’s for purposes of the Section 5(10) exception. This turns on whether Acme was affiliated with Shipper’s at the relevant time.

The sections of the Interstate Commerce Act in question in this litigation allow certain motor common carriers to merge only with ICC approval. Section 5(10) exempts small carriers from Section 5(2) ICC approval process. Originally, the exception exempted carriers which had less than 20 motor vehicles, including vehicles owned by affiliates and vehicles leased or operated by a carrier or affiliate. In 1965 Congress abandoned the vehicle measure and opted for a more reliable gross revenue measure:

where the aggregate gross operating revenues of such carriers have not exceeded $300,000. for a period of twelve consecutive months ending not more than six months preceding the date of the agreement of the parties covering the transaction. 49 U.S.C. Section 5(10).

Prior to 1965, case law indicated that the words “enter into any transaction” in Section 5(4), triggering the criminal liability, referred to the date of consummation of the merger or control agreements, in other words, the “closing date.” In determining which vehicles to count to ascertain whether or not the old Section 5(10) exemption applied, the closing date was also used. For example, if the carrier had an affiliate on the closing date, the vehicles owned by the affiliate were counted for Section 5(10) purposes.

When Congress amended the exemption provision in 1965 to use a gross revenue measure, the current statutory language was enacted providing a time period during which the gross revenue would be measured — 12 consecutive months ending not more than six months preceding the date oí the agreement of the parties covering the transaction.

The district court ruled that the proper method of computation of Shipper’s revenue was to ascertain the aggregate amount for Shipper’s and Acme for the specific twelve month period ending six months prior to December 8, 1970, the date on which the consolidation agreement between Fleming’s and Shipper’s was entered into.

Appellants argue that the December 29th date, the date of consummation, otherwise called the “closing date” should be used to determine affiliates of Shipper’s, and that Acme, having ceased to be a carrier as of December 16, 1970, would no longer be an affiliate; hence, its revenues for the eighteen-month period should not be counted as those of Shipper’s even though the two companies were affiliated at this earlier time. Appellant’s argument rests heavily on the pre-1965 legislation and its interpretation.

Prior to the 1965 amendment the determination of whether or not a company qualified for the exemption, was made through a vehicle count and the' date of consummation was used to determine affiliation. The pre-1965 vehicle count provision did not include any indication of Congressional intent as to when the vehicle count would be done. However, the courts and the ICC uniformly used the date of consummation to maintain consistency with the application of the criminal sanction for “transactions” violating the approval and authorization procedure. Transactions cognizable under the criminal provision were uniformly deemed to be those which gave control of one carrier to another carrier in the absence of ICC approval and authorization. An agreement which envisioned a transfer of control in the future was not considered such a transaction.

A recent ICC case which used the date of consummation with the new revenue measure provision may clarify the policy of the Commission and also suggests a logical and desirable application of the provisions of the two types of approval and authorization procedure. Cargo Express, • Inc., Transferee, and Ohio Fast Freight, Inc., Transferor, 116 M.C.C. 387 (1973) involved an application by Cargo Express, a non-carrier, pursuant to Section 312 to acquire a part of Fast Freight, a carrier. Almost a year after the agreement between Cargo and Fast Freight had been signed but prior to consummation, Cargo acquired another carrier, Raub. Cargo argued that Section 5 with its more complicated application procedure did not apply because Cargo only became a carrier by virtue of the acquisition of the carrier, Raub, and hence, it was not subject to Section 5 on the “date of agreement” between Cargo and Fast Freight which occurred almost a year before Cargo acquired Raub. The Commission found that: “It has long been the view of the Commission that the status of the parties as of the date of actual consummation is controlling in determining whether the provisions of section 212(b) or section 5 are applicable.” 116 M.C.C. at 392. See also Davis —Purchase—Lambrecht, 66 M.C.C. 779 (1965); Ship-By-Truck Co., Inc. v. United States, 208 F.Supp. 847, 850 (D.Kansas 1962), aff’d per curiam, 373 U.S. 376, 83 S.Ct. 1312, 10 L.Ed.2d 420 (1963).

Commission policy, in accord with Congressional intent in providing two levels of scrutiny for acquisition of control, has been to determine the status of parties, carrier — -non-carrier and large or small ($300,000. plus or minus) on the date of actual consummation, the date when the control and consolidation of economic power in the transportation industry becomes a reality. To do otherwise imposes an unnecessary burden on the agency as well as subjecting the applicants to arbitrary and inconsistent results when Congress clearly intended that smaller carriers be exempt from complex proceedings under Section 5.

The lower court decision in this case recognizes the necessity of viewing the provisions of Section 5 as a whole. Judge Caff rey in ruling that the date of agreement controlled the determination of affiliation for Section 5(10) purposes specifically relied on the language “entering■ into any transaction” in Section 5(4). We find that this reliance was misplaced inasmuch as the Section 5(4) language has remained unchanged since 1933 and the courts and the Commission have consistently construed the phrase “entering into any transaction” to refer to consummation.

The statutory scheme of Section 5 focuses on the actual direct or indirect control of one carrier by another carrier where one of them is of a certain size as determined by revenue. In this case there is a stipulation that control was not exercised until after the closing. It follows that an interpretation of Section 5(10) using the “closing date” to determine which revenues are to be counted will serve to achieve the necessary scrutiny while exempting the group of transactions which Congress has set apart. For when the Fleming’s — Acme affiliation terminated, Fleming’s was no longer of the size triggering Section 5.

While the 1965 amendment did substitute an income measure for the vehicle measure of the Section 5(10) exemption, the overall scheme of the Section 5 scrutiny of consolidation agreements between more powerful carriers remains the same; thus a consistent and equitable interpretation for carrying out Congressional intent requires a reversal of the criminal conviction of Fleming’s Express.

      . Fleming’s Express, Inc. is a motor vehicle common carrier within the meaning of the Interstate Commerce Act, 49 U.S.C.

      . 49 U.S.C. Section 5(4) provides:
      It shall be unlawful for any person, except as provided in paragraph (2) of this section, to enter into any transaction within the scope of subdivision (a) of paragraph (2) of this section, or to accomplish or effectuate, or to participate in accomplishing or effectuating, the control or management in a common interest of any two or more carriers, however such result is attained, whether directly or indirectly, by use of common directors, officers, or stockholders, a holding or investment company or companies, a voting trust or trusts, or in any other manner whatsoever. It shall be unlawful to continue to maintain control or management accomplished or effectuated after the enactment of this amendatory paragraph and in violation of its provisions. As used in this paragraph and paragraph (5) of this section, the words “control or management” shall be construed to include the power to exercise control or management.
      49 U.S.C. Section 10(1) provides:
      Any common carrier subject to the provisions of this chapter, or, whenever such common carrier is a corporation, any director or officer thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by such corporation, who, alone or with any other corporation, company, person, or party, shall willfully do or cause to be done, or shall willingly suffer or permit to be done, any act, matter, or thing in this chapter prohibited or declared to be unlawful, or who shall aid or abet therein, or shall willfully omit or fail to do any act, matter, or thing in this chapter required to be done, or shall cause or willingly suffer or permit any act, matter, or thing so directed or required by this chapter to be done not to be so done, or shall aid or abet any such omission or failure, or shall be guilty of any infraction of this chapter for which no penalty is otherwise provided, or who shall aid or abet therein, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any district court of the United States within the jurisdiction of which such offense was committed, be subject to a fine of not to exceed $5,000 for each offense

      . Shipper’s Service, Inc. is a corporation which is a motor vehicle common carrier within the meaning of the Interstate Commerce Act, 49 U.S.C.

      . It is important to note, however, that the date of actual consummation has not been determined solely by the actual transfer of legal title but rather the inquiry focuses on the actual or potential indirect or direct control of one carrier by another:
      Section 5 is primarily concerned with the transfer of possession or control of operations, and, in determining its applicability, the status of the parties and operations when such transfer is effected is controlling . For such purposes, it is immaterial whether transferee obtains legal or equitable title when the transfer is effected.
      After delivery of the properties to vendee and the assumption of operations by it . the sale was completely consummated, except for payment of the purchase price. On that date, the parties clearly intended the transaction as a purchase regardless of its form. Execution of a bill of sale would merely serve as evidence of what had already been accomplished. ABC Truck Lines, Inc.-Purchase—D. D. Maner, 38 M.C.C. 507, 510-11 (1942), citing Greyhound Mergers, 1 M.C.C. 342, 351-52 (1936).


source: Caselaw Access Project

author: ALBERT V. BRYAN, Senior Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. James Ellsworth JONES, Appellant.
    No. 73-2220.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 8, 1974.
    Decided Jan. 7, 1975.
    Certiorari Denied April 28, 1975.
    See 95 S.Ct. 1684.

      Glenn M. Hodge, Harrisonburg, Va. (W. W. Wharton, Harrisonburg, Va. [Court-appointed counsel], and Wharton, Aldhizer & Weaver, Harrisonburg, Va., on brief), for appellant.
    Leigh B. Hanes, Jr., U. S. Atty. (Ronald D. Hodges, Asst. U. S. Atty., on brief), for appellee.
    Before BRYAN, Senior Circuit Judge, and CRAVEN and FIELD, Circuit Judges.
   ALBERT V. BRYAN, Senior Circuit Judge:

Prosecuted for kidnaping as it is condemned in 18 U.S.C. § 1201, James Ells-worth Jones was returned guilty by a jury and sentenced to life imprisonment. The judgment will be affirmed.

His defense at trial and here is twofold: (a) that due to amnesia he was so mentally incompetent as to be unable to assist in his own defense, and (b) the evidence did not establish, beyond a reasonable doubt, the indictment crime: that he unlawfully abducted Leland Norris Davenport and willfully transported him while alive across the State lines. The first contention is altogether overridden by the contrary finding of the District Judge in a procedurally correct inquisition and upon clear and convincing testimony. See 18 U.S.C. § 4244. As to both the seizure and interstate removal the evidence, although wholly circumstantial, was substantial and plenteously adequate to allow the jury to say he was guilty beyond a reasonable doubt.

The statute’s now pertinent parts are these:

“§ 1201. Kidnaping
(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, . . . when:
(1) the person is willfully transported in interstate . . . commerce; shall be punished by imprisonment for any term of years or for life.
(b) With respect to subsection (a)(1), above, the failure to release the victim within twenty-four hours after he shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away shall create a rebuttable presumption that such person has been transported in interstate . commerce.”

Leland Norris Davenport was a young employee of a filling station at Mint Springs, just off Highway 1-81, near Staunton, Virginia. Murdered, he was found on May 25, 1972 lying in a ditch alongside this roadway and within West Virginia. Measured along this route, the point is more than 120 miles northwardly from Mint Springs; it was near Martins-burg, West Virginia. The evidence teems with proof that the murder was the work of Jones. However, that is not this case, for he was not accused of homicide.

The crucial questions are (1) whether Jones seized Davenport in Virginia and willfully transported him into West Virginia, and (2) if so, whether Davenport was alive when so transported. Obviously, even if Jones did carry him into West Virginia, still if Davenport was dead when he left Virginia, Jones could not be held guilty of Federal kidnaping. On the other hand, if Davenport was abducted by Jones, then the statute prima facie presumed that he was transported interstate, for he was not released within 24 hours. 18 U.S.C. § 1201(b). Appellant maintains that the Government failed to show that Davenport was alive when taken into West Virginia, and hence Jones cannot be convicted as indicted under 18 U.S.C. § 1201(a).

Davenport was the only attendant on duty at the filling station on the night of May 24-25, 1972. He was last seen alive about 1:45 o’clock, A.M. on May 25, 1972 when a patron stopped there and talked with him. Soon afterwards another customer came to the station, looked around for the one in charge but could find nobody there. Inside, the place was in disarray. The telephone receiver was dangling off the hook. On the floor was Davenport’s cap, a credit card clipboard and, near the phone, a scrap of paper on which Davenport had written what looked to be a computation of a tire price. The cash register was open, with coins only in it, although the station owner had left about $150.00 of paper currency in it before leaving for the evening.

Just after midnight a small, foreign car had been seen in a bay area outside the station, jacked up as if undergoing repairs. A used tire was on the ground nearby, while a new one of the same design had been taken from the rack. Both tires were of the Volkswagen type. Moreover, the price of that tire was the same as that which Davenport had written on the piece of paper found in the station.

The telephone operator at Staunton had received a request from Davenport, whom she knew, about two o’clock A.M., to place a call for him to a number he gave as that of the BankAmericard agency used by the station to verify credit cards. Unsuccessful in reaching the number, the operator rang the station back but obtained no response. Her equipment signaled that the station’s receiver was off the hook.

Just before five o’clock the same morning, a West Virginia State Patrol driver going northwardly on 1-81 saw a Volkswagen headed in the same direction but stopped on the shoulder of the righthand lane with no lights burning. This location was estimated as 1.4 miles north of the West Virginia-Virginia (east-west) line, which is 100 miles, more or less, north of Mint Springs. Only one person was seen at the small car.

An ho.ur later, about six o’clock, the same patroller stopped on 1-81 to assist a man then pushing a Volkswagen with its lights off, northward along the right edge of the road. This was approximately 17 miles north of the Virginia line. He explained his predicament as

lack of oil. In the patrol car the two drove to a service station, returning together with oil. But the Volkswagen could not be started. At his request the State Trooper called a wrecking vehicle which arrived in about 20 minutes.

During the wait the two men sat in the State car. Jones said he wanted to dispose of the Volkswagen at the nearest junk yard. The patroller saw oil spots on the road. He saw, too, blood on the “back part” and “on the side” of the passenger’s seat, on the running board on the passenger’s side, and “a little bit on the side of his head up there . right about his right ear”. The Volkswagen driver was identified as the appellant Jones. When the wrecker arrived Jones rode with him, and the pa-troller left them both.

The Volkswagen was hauled to Mar-tinsburg. When paying the wrecker Jones displayed a roll of paper money which appeared to be about $150 in amount. He transferred his “things” — a pile of clothes and two suitcases in the back seat — into a taxicab, which he took immediately, saying he wished to go to New York. He continued in the taxi as far as Hagerstown, Maryland where, he was told, he could obtain an earlier bus for New York than was available in Martinsburg. Finally, he had the taxi take him to Stroudsburg, Pennsylvania where it dropped him.

After leaving Jones with the taxi, the wrecker parked the Volkswagen in front of his father’s residence in Martinsburg. The wrecker went back to his place of employment a few minutes after eight o’clock A.M. and was absent from the Volkswagen until five P.M. Then he looked over it again, seeing blood on the gear shift, between the seats, and “a lot of blood underneath the seat cover”. The “seat was tore up on the driver’s side of the car.” The blood was still wet. The wrecker then called the sheriff and took the Volkswagen to the State Police Barracks.

At the trial, a tire expert estimated that one of the tires taken from the Volkswagen had been driven “somewhere between 100 and 250 miles”. The distance between Mint Springs, Virginia and Martinsburg, West Virginia is 123 miles.

After the report by the wrecker, Davenport’s body was found by State Troopers and seen by the medical coroner about 8 o’clock P.M. on May 25 — the day of his disappearance. He had been shot twice with a .38 caliber revolver — once in his back and again in the left front chest. There were powder burns about the wounds, indicating they had been inflicted at a short distance. Numerous scuff marks were on his elbows and knees, as well as on his back. The coroner thought that the marks on the right elbow and back could have been caused prior to death, and the ones on the knees and left elbow after death. There were also abrasions on his back which, on account of signs of hemorrhaging, led the doctor to believe that they were suffered while Davenport was living. “In other words, his body could still pump blood through these areas.” He explained that the first shot involved an injury to the lung, resulting in mass bleeding. All of the blood proved to be of Davenport’s type.

When the coroner first saw the deceased he was lying in a small ditch where the State Troopers had first discovered the body. In this locality — a “pull-off section of the road” — he saw oil stains on the road as well as a “rather large blood stain”. The grass “had been bent down towards the body in a general curve from the road down toward where the body was lying.” Near the body was a blood-stained shirt. He had on a wristwatch showing the date of May 25, 1972. It had stopped at 4:50 — whether A. M. or P. M. was undeterminable. Following this inspection the body was taken to a funeral home for further viewing. No fingerprints of Davenport were detected on the car. The bullets were removed by the coroner from the body and ballistics tests established that they were discharged from the revolver which was found in the possession of Jones when he was arrested.

Upon the same side of Highway 1-81 on which the body was later seen — 16 miles to the south, but still in West Virginia, and 1.4 miles north of the Virginia line — buttons and pieces of a station attendant’s type shirt, such as Davenport was wearing, were found. Also, there was a ballpoint pen carrying the- advertisement of the Mint Springs filling station and, in addition, pieces of crystal which fitted into Davenport’s watch. No blood was proved to be there.

Jones was arrested in Milford, Pennsylvania on August 6, 1972 hiding in a tree, from which he fell 40 feet and dropped a number of personal belongings. Among them was a BankAmeri-card, whose agency Davenport on the morning of May 25 had attempted to contact by telephone, and a .38-revolver.

Appraising the case overall, with this proof before the jury we think the District Court rightfully refused to direct a verdict of acquittal.

The evidence was amply sufficient to allow the jury, if it saw fit, to find that Jones had abducted Davenport. Plainly, it was to his advantage to prevent the escape of Davenport, so that his crimes at the station could not be reported. The presence within West Virginia of the watch crystal parts, the shirt shreds and the ballpoint pen were reasonably acceptable clues of the abduction. This is true as well of the new tire on the Volkswagen and the roll of paper currency in Jones’ possession.

Nor can it be said that there was no reasonable basis on which the jury could have, thought Davenport alive as he was taken across the border of the States. Existence of the recited clues is acceptable as initial indicia of murderous assault upon Davenport. It certainly bears signs of bodily combat and occurred one mile within West Virginia. No blood was descried in Virginia and none was observed until 17 miles within West Virginia, that is, where the lifeless body lay.

Between the State Trooper’s first and second sights of the Volkswagen was 16 miles of distance and the interval between his appearances was an hour. These spaces of place and time afforded the murderer opportunity aplenty to leave unnoticed the corpse where it was finally laid. That where Davenport was then lying — within West Virginia territory — was his last place of life is suggested by the coroner’s opinion testimony: that some circulation of blood may have been in the body just before it was put in the ditch.

Confessedly, these considerations and conclusions are exclusively in the province of the jury, not to be poached upon by the courts. So it is not for this court to say whether these are logical postulates. However, mention now is simply to demonstrate that the verdict is predicable upon a non-frivolous foundation. The only obligation of the courts is to ascertain if the evidence of guilt was so substantial as to permit the jury, if it was so convinced, to render a verdict of guilty. If proof is wanting in this regard, then the courts must intervene; otherwise they become trespassers. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Sherman, 421 F.2d 198, 199 (4 Cir. 1970), cert. denied, 398 U.S. 914, 90 S.Ct. 1717, 26 L.Ed.2d 78 (1970).

While alone upon this aggregate of facts there was enough to take the case to the jury on the charge of Federal kidnaping, this determination is buttressed by inferences and presumptions of law.

For example in United States v. Rees, 193 F.Supp. 849, 859 (D.C.Md.1961, opinion by Thomsen, Ch. J.), the Court declared that the place where the dead body is found is presumed to be the place of death. The likeness of the circumstances of that case corroborates the correctness of the result presently. Judge Thomsen cited apt precedents which were persuasive, such as Breeding v. State, 220 Md. 193, 200, 151 A.2d 743, 747 (1959); and People v. Peete, 54 Cal.App. 333, 202 P. 51, 64 (1921), even though they chiefly related to the venue of local crimes.

The coroner’s observation that there may have been some circulation of blood in Davenport’s body just before it was put in the ditch, becomes of particular force with the holding of Allen v. Mazurowski et al., 317 Mass. 218, 57 N.E.2d 544 (1944) that there is a presumption that a person is living until the contrary is shown. Applied here, the presumption of law is that Davenport was alive in the ditch until his death there appeared.

Although noted, we find without merit the appellant’s error assignments relating to the admission of certain evidence and to the argument of the prosecuting attorney. The judgment of the District Court will be approved.

Affirmed.


author: EUGENE A. WRIGHT, Circuit Judge:

text:
    HOLLYWOOD HOUSE INTERNATIONAL, INC., a California Corporation, Plaintiff-Appellant, v. E. Theodore KLASSEN, Postmaster General of the United States, et al., Defendants-Appellees.
    No. 73-1355.
    United States Court of Appeals, Ninth Circuit.
    Dec. 30, 1974.
    Barry A. Fisher (argued), Hollywood, Cal., for plaintiff-appellant.
    James R. Dooley, Asst. U. S. Atty. (argued), Los Angeles, Cal., for defendants-appellees.
    Before WRIGHT and WALLACE, Circuit Judges, and EAST, District Judge.

       Of the District of Oregon.

   OPINION

EUGENE A. WRIGHT, Circuit Judge:

Hollywood House published and sold by mail a booklet entitled “ ‘Weight-Away,’ A Very Successful Grapefruit Diet.” Appellees initiated proceedings against Hollywood House under 39 U.S.C. § 3005, which authorizes the Postal Service to take certain steps to deny those who engage in fraudulent advertising practices the use of the mails to further and benefit from their fraudulent schemes.

In the Postal Service administrative proceeding, the hearing examiner held that appellant’s advertisements for its booklet constituted a “scheme or device for obtaining money or property through the mail by means of false representations” within the meaning of Section 3005, and recommended that an order be issued denying appellant’s attempt to recover the impounded mail addressed to it. The administrative judicial officer sustained the hearing examiner’s findings of fact, and issued an order rejecting Hollywood House’s contentions that the Postal Service’s actions were not justified under the statute, and that the statute itself was unconstitutional both on its face and as applied to appellant’s booklet.

Hollywood House then sought to enjoin enforcement of the Postal Service administrative order, and requested that a three-judge court be convened to declare Section 3005 unconstitutional as vi-olative of the First, Fifth, Sixth and Seventh Amendments. The district court refused to convene a three-judge court, finding no substantial constitutional question had been raised, and upheld the administrative determination as based on substantial evidence. We affirm.

The constitutionality of Section 3005 was upheld in Lynch v. Blount, 330 F.Supp. 689 (S.D.N.Y.1971), aff’d, 404 U.S. 1007, 92 S.Ct. 673, 30 L.Ed.2d 656 (1972), and again in United States v. Outpost Development Corp., 369 F.Supp. 399 (C.D.Cal.), aff’d, 414 U.S. 1105, 94 S.Ct. 832, 38 L.Ed.2d 733 (1973). The appellant argues that Lynch and Outpost Development dealt with false representations of products sold through the mails, whereas the case before us involves literature, protected as free speech. We perceive no difference.

Appellants rely on Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971), where the Court struck down 39 U.S.C. § 4006 (1964), which provided for proceedings similar to those under Section 3005 for the seizure of remittances to panderers dealing in obscene materials. Appellants also may find support in some language in Outpost Development, supra, where a three-judge court specifically pointed out that “in no place in the advertising is it stated that [the product] is a booklet.” 369 F.Supp. at 402. Nevertheless, .Outpost Development considered and specifically rejected the applicability of Rizzi to cases involving fraudulent advertising schemes. Id.

Fraudulent commercial appeals are not a protected form of expression, and appellant could acquire no enforceable proprietary interest in the fruits of their publication. United States v. International Term Papers, Inc., 477 F.2d 1277 (1st Cir. 1973). Cf. Valentine v. Chres-tensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942). The district court appropriately denied a preliminary injunction and concluded that the administrative findings of false representations was supported by substantial evidence. We affirm, and direct the district court to dismiss on the merits the appellant’s action presently pending before it for trial.

      . After probable jurisdiction was noted in Blount v. Rizzi, but prior to the decision in that case, Section 4006 was reenacted in substantially identical form as 39 U.S.C. § 3006 (1970), to transfer authority from the Postmaster General to the newly-formed United States Postal Service.


author: McENTEE, Circuit Judge.

text:
    Roseanna ROSELLI et al., Plaintiffs-Appellees, v. John J. AFFLECK, Individually and in his capacity as Director of the Rhode Island Department of Social and Rehabilitative Services, Defendant-Appellant.
    No. 74-1084.
    United States Court of Appeals, First Circuit.
    Heard Sept. 9, 1974.
    Decided Dec. 31, 1974.

      W. Slater Allen, Jr., Asst. Atty. Gen., with whom Richard J. Israel, Atty. Gen., was on brief, for appellant.
    Jay C. Lipner, Providence, R. I., with whom John M. Roney and Kenneth F. Maclver, Jr., Providence, R. I., were on brief, for appellees.
    Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and MOORE, Senior Circuit Judge.

       Of the Second Circuit sitting by designation.

   McENTEE, Circuit Judge.

Defendant, Director of the Rhode Island Department of Social and Rehabilitative Services, takes this interlocutory appeal from the issuance of a preliminary injunction precluding him from implementing the state’s new flat grant welfare program to the extent it supplants the state’s former method of welfare payments for the purchase of shelter. . We affirm.

As a condition of participation in the federal AFDC program, states must tailor their public assistance plans to comply with the requirements of 42 U.S.C. § 602(a) (1970), King v. Smith, 392 U.S. 309, 316-317, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). Subsection (a)(23) of § 602 provides: “[The States shall] provide that by July 1, 1969, the amounts used by the State to determine the needs of individuals will have been adjusted to reflect fully changes in living costs since such amounts were established . . . .” In essence the states are required to fix a standard of need, “a yardstick for measuring who is eligible for public assistance,” Rosado v. Wy-man, 397 U.S. 397, 408, 90 S.Ct. 1207, 1216, 25 L.Ed.2d 442 (1970), as a benchmark against which subsequent changes in state welfare programs may be evaluated. A state may choose to lower the level of benefits actually paid to welfare clients but it may not lower or obscure its standard of need in such a way as to disguise the step and avoid public scrutiny. 397 U.S. at 413, 90 S.Ct. 1207. See also New Jersey Welfare Rights Org. v. Cahill, 483 F.2d 723 (3d Cir. 1973), aff’g 349 F.Supp. 501 (D.N.J.1972); Johnson v. White, 353 F.Supp. 69, 74-75 (D.Conn.1972); Rhode Island Fair Welfare Rights Org. v. Department of S & R Serv., 329 F.Supp. 860, 866-867 (D.R.I.1971); Alvarado v. Schmidt, 317 F.Supp. 1027, 1034 (W.D.Wis.1970).

This requirement has special significance in the context of a wholesale reorganization of a state welfare program like the institution of a flat grant plan, because elements of the standard of need tend to get “lost” when the program undergoes its radical metamorphosis. Alvarado v. Schmidt, 369 F.Supp. 447, 450 n. 6 (W.D.Wis.1974). A state may unquestionably adopt a flat grant method of payout, Rosado v. Wyman, supra at 419, 90 S.Ct. 1207, and even accommodate budgetary realities by paring down its level of benefits, id. at 413, 90 S.Ct. 1207, but the new standard of need must account, for price and average fairly all factors in the old standard, id. at 419, 90 S.Ct. 1207. This means that in converting to a flat grant a state may not calculate its new standard of need from figures which did not accurately reflect its enunciated standard of need, thereby enshrining a lessened level of benefits without appearing to do so. See New Jersey Welfare Rights Org. v. Cahill, 349 F.Supp. 501, 512 (D.N.J.1972), aff’d, 483 F.2d 723 (3d Cir. 1973); Johnson v. White, supra, 335 F.Supp. at 77— 78.

Plaintiffs, a class of welfare recipients, alleged that Rhode Island had, before adopting the flat grant system contested here, espoused an “actual need” measure of both the standard of need and the level of benefits in the provision of shelter payments for welfare clients, but had failed to adhere to this policy in practice. They alleged that the present measure of need, incorporated in the flat grant fails to reflect the previous standard as required by 42 U.S.C. § 602(a)(23) (1970) because inter alia it unlawfully presumes the availability of income to welfare mothers living with men assuming the role of spouse and fails to take into account the actual cost of rentals at the time the new program was adopted. Thus the figures from which the flat grant averages were computed, those the state budgeted for 1972, allegedly did not reflect fully the actual shelter needs of Rhode Island AFDC recipients current at the time of transition. Therefore it was alleged that the implementation of the flat grant effectively obscured the state’s actual need standard in contravention of Rosado v. Wyman, supra, 353 F.Supp. at 412 (1970).

After a hearing, the district court concluded, 373 F.Supp. 36 (D.R.I.1974), that plaintiffs were irreparably harmed by the installation of the flat grant, a finding not challenged on appeal, and that there was a probability that they would prevail on the merits. See Keefe v. Gea-nakos, 418 F.2d 359, 360 (1st Cir. 1969). The court granted a preliminary injunction and defendant took this interlocutory appeal.

At the outset we note that in seeking reversal of the preliminary injunction defendant has shouldered the heavy burden of showing a clear error of law or an abuse of discretion on the part of the trial court, Engine Specialties, Inc. v. Bombardier, Ltd., 454 F.2d 527, 530 (1st Cir. 1972), whose tentative findings of fact are entitled to the normal strong presumption of correctness, id. We cannot accept defendant’s contention that HEW’s blanket approval of the state’s plan is conclusive as to its legality in all respects when the objections presently urged by plaintiffs were never before the agency for consideration. Despite the deference undeniably due an agency’s interpretations of a statute it is charged with administering, the courts have not hesitated to override HEW positions espoused far less equivocally than here. See, e. g., Carleson v. Remillard, 406 U.S. 591, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972); Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971). Naturally we encourage the court to solicit HEW’s guidance as the proceedings progress. See Rosado v. Wyman, supra, 353 F.Supp. at 406-407.

The nub of this case is the proper characterization of Rhode Island’s prior standard of need. The State’s welfare policy manual provides:

“Rent, as paid may be approved by the case aide up to $80.00 a month. Rent between $80.00 and $120.00 a month is referred to the Casework Supervisor ’ for evaluation and decision. A [sic] AP — 81 is required. Rent above $120.00 a month requires the approval of the Senior Supervisor.
“Approval for rent in excess of $80.00 a month is related to the size and needs of the family, the number of rooms required, the prevailing rates in the community and local minimum housing standards.” Manual of Assistance Payment for Families, Section II at 5.

Every witness to testify on this point — • the Director of the Department, the Administrator of its Assistance Payments Division, and two employees of the consulting firm hired to prepare the flat grant — interpreted the state’s policy as one of meeting shelter expenses as needed subject to a limitation of reasonability or prudence. The court not unreasonably accepted this characterization. The limitations included within the state’s expression of its policy coupled with the fact that other states have apparently survived analogous policies belie defendant’s contention that the court’s construction of the state standard would inevitably bankrupt its assistance program.

The court relied on the testimony of the welfare directors of Cranston and East Greenwich to the effect that over a third of the welfare families in those cities were paying from $5 to $200 more for shelter than the state flat grant system allows them as evidence that the 1972 budget figures (from which the flat grant was computed) did not reflect the state’s policy of meeting actual needs, subject to the limitation of reasonability. Defendant may of course show at trial that this statistic is false or unrepresentative. Nevertheless, the fact that the rents of so large a proportion of welfare families in these two cities exceeded the state’s budgeted payments is convincing prima facie evidence that those payments did not reflect “the actual cost of living within the community” consistently with the state’s policy guidelines.

Defendant takes exception to the court’s requirement that the state use current shelter figures in computing the standard of need incorporated in the flat grant. He correctly avers that § 602(a)(23) imposes no update requirement for cost of living increases after July 1, 1969, and that the courts have refused to characterize inflation as an element of the prior standard of need for which provision must be made after the implementation of a flat grant. See, e. g., New Jersey Welfare Rights Org. v. Cahill, supra. However, in adopting a policy of meeting housing needs fully, the state in effect imposed an update requirement upon itself. In a period of rising shelter costs it is obvious that the calculation of the flat grant on the basis of year-old budgeted amounts not adequate at the time, much less currently, will result in an obscuring and diminution of the state’s actual need standard. Though it need not recognize inflation after the institution of the flat grant, the state must compute the standard of need on the basis of the realities at the time of implementation.

Finally, defendant challenges the court’s conclusion that budget figures reflected an improper conclusive presumption by the state that an unrelated man living with a family and assuming the role of spouse (the so-called MARS) contributes a pro-rata share of shelter costs. HEW regulations provide that the presence in the home of a “substitute parent” or “man-in-the-house” is not an acceptable basis for assuming the availability of income by the state. 45 C.F.R. § 233.90(a)(1973). The Supreme Court upheld this regulation as a valid interpretation of the Social Security Act in striking down California’s conclusive presumption that the income of a MARS was available to the children in computing AFDC assistance. Lewis v. Martin, 397 U.S. 552, 90 S.Ct. 1282, 25 L.Ed.2d 561 (1969). The Court reasoned that HEW could validly conclude that only a person as near as a real or adoptive father has the consensual relation to the family making it reliably certain that his income is actually available for support of the children in the household. Defendant does not claim that a MARS is obliged to support the woman with whom he is living under state law. He seeks to distinguish this holding by emphasizing that the state’s regulation presumed income only to the caretaker relative with whom the children reside, not to the children themselves. Neither the regulation nor the case supports this distinction. The AFDC program recognizes “the inseparability of the needs of the child from the needs of the relative with whom the child is living.” Rodriguez v. Vowell, 472 F.2d 622, 624-627 (5th Cir. 1973). In that case the court invalidated a state regulation which in effect presumed that a dependent child’s income in excess of his own needs would necessarily be available to meet the needs of his caretaker relative. It is true, as the state asserts, that this action does not directly challenge the legality of the MARS presumption, but the state ought not to be allowed to premise the calculation of the flat grant on an unlawful attribution of income policy.

In sum, at this point we find no clear error of law or abuse of discretion on the part of the court below. The issue of the preliminary injunction is affirmed and the case remanded for trial.

Affirmed.

      . The Supreme Court has aptly characterized this provision as a “child born of the silent union of legislative compromise,” Rosado v. Wyman, 397 U.S. 397, 412, 90 S.Ct. 1207, 1218 (1970). Congress, although unwilling to require states to make mandatory adjustments in categorical aid to reflect increases in the cost of living, nevertheless encouraged them to choose such a course voluntarily by forcing the states to “accept the political consequences [of downward adjustments in the level of benefits paid] and bringing to light the true extent to which actual assistance falls short of the minimum acceptable,” id. at 413, 90 S.Ct. at 1218. See also Bryant v. Carleson, 444 F.2d 353, 359 (9th Cir. 1971).

      . Defendant’s contention that Sister Maynard’s testimony comparing budget with actual cost confused the court is misdirected, since the testimony went to the question of irreparable injury and was not relied on by the court in reaching its conclusion as to the state’s standard of need.

      . We are constrained to express some hesitation at the court’s equation of this “as needed” standard with a standard of actual cost to the recipient subject-only to a limitation of reasonableness. The latter formulation seemingly broadens the recipient’s discretion at the expense of the state’s while blurring the guidelines according to which the adequacy of the state’s budgeted payments may be evaluated. Administrator Murray of the Assistance Payments Division testified that Rhode Island “had a history of establishing need based on actual costs,” (emphasis supplied), but also declared that shelter requirements were determined objectively by the actual cost of living within the community, not subjectively by the recipient. Roger Soucy, an employee of the consulting firm, specifically distinguished Rhode Island’s policy from an unqualified policy of meeting actual costs. The difference between the two formulations may be purely verbal, and the state’s use of out-of-date figures and its irrebutable presumption of income from a man assuming the role of spouse seem infirm whatever formulation is applied. We of course intimate no conclusion as to which of these two constructions is proper, but merely wish to note for the trial court’s further consideration that they may possibly differ.

      . Defendant’s contention that there is no evidence whatsoever in the record as to the dollar deviation between budget and actual cost is mistaken.

      . Such an argument could be made on the basis of the court’s suggested survey of actual rents.

      . According to the Court, 397 U.S. at 557, 90 S.Ct. 1282, n. 8, a person whose presence is deemed essential to the well-being of the recipient of assistance and who is included in the family budget unit for calculation of need, 42 U.S.C. § 602(a)(7), is an “exception.” Even if the Court meant that the income of such a person may conclusively be presumed available in determining the family’s needs, the exception is inapplicable since the requirements of 45 C.F.R. § 233.20(a)(2)(vi) governing the designation of such persons have not been complied with here.

      . We draw the court’s attention to the twin cases of Hurley v. Van Lare and Taylor v. Lavine. The district courts enjoined the enforcement of certain regulations of the New York Department of Social Services similar to the ones in question here on the grounds that they contravened the same HEW regulations we cite here. 365 F.Supp. 186 (S.D.N.Y.1973), and Slip Op. 73-C-699 (E.D.N.Y.1973). The court of appeals reversed, holding that the state’s regulations were not inconsistent with HEW’s and remanded to a three-judge panel for a hearing on the constitutional issues. 497 F.2d 1208 (2d Cir. 1974). The special district court then held the state’s regulations unconstitutional, 380 F.Supp. 167, and the Supreme Court has noted probable jurisdiction in Van Lare, 419 U.S. 1045, 95 S.Ct. 617, 42 L.Ed.2d 638, and granted certiorari in Taylor, 419 U.S. 1046, 95 S.Ct. 617, 42 L.Ed.2d 639 (1974). Although it would serve no purpose to discuss these cases further at this point, we note that the instant case may be distinguishable inasmuch as the Rhode Island regulation, unlike New York’s, 497 F.2d at 1215, seems to deny the AFDC mother her
      share of the housing expenditures, rather than simply requiring the MARS to contribute his ratable share.


author: PER CURIAM:

text:
    The CITY OF INGLEWOOD and Robert H. Collins et al., Plaintiffs-Appellees, v. UNNAMED CITIZENS, RESIDENTS AND OWNERS OF PROPERTY WITHIN the CITY OF INGLEWOOD, Plaintiffs-Appellants, v. The CITY OF LOS ANGELES, Defendant-Appellee.
    No. 72-2143.
    United States Court of Appeals, Ninth Circuit.
    Dec. 31, 1974.
    Michael M. Berger (argued), of Fadem & Kanner, Beverly Hills, Cal., for appellants.
    Donald E. Olson, City Atty., Inglewood (argued), Inglewood, Cal., Milton N. Sherman, Asst. City Atty., Los Angeles (appeared), Los Angeles, Cal., for appel-lees.
    Before HUFSTEDLER and TRASK, Circuit Judges, and NEILL, District Judge.

       Honorable Marshall A. Neill, United States District Judge from the Eastern District of Washington, sitting by designation.

   OPINION

PER CURIAM:

This is an appeal from the dismissal of a suit brought as a class action by the City of Inglewood, California, and Robert H. Collins against the City of Los Angeles for damages and for injunctive relief against jet aircraft noise surrounding the Los Angeles International Airport.

The City of Inglewood as “parens pat-riae” for various “unnamed citizens” filed similar lawsuits in federal and state courts seeking damage and injunctive relief from the noise of jet aircraft operating from the Los Angeles International Airport. The law firm of Fadem & Kanner was retained by written contract as “Special Counsel” to prosecute the cases with the Inglewood City Attorney having “continuing control of all litigation undertaken . . ..” For numerous tactical reasons, on March 7, 1972, the Inglewood City Council by formal resolution authorized the City Attorney to dismiss the suit pending in federal court and prosecute the state action alone. Acting upon this authorization, the City Attorney moved for the dismissal of the federal action. Fadem & Kan-ner opposed this motion and argued that the district court could not order a dismissal without first notifying all the members of the class. The district court rejected this argument on the ground that suit had never been formally approved as a class action pursuant to Rule 23(c)(1) of the Federal Rules of Civil Procedure. Taking cognizance of the pending state court action, the district court granted Inglewood’s motion for dismissal without a notice compliance.

Appellant Fadem & Kanner appeals on behalf of the “unnamed citizens” of Inglewood whose interests are allegedly jeopardized by the dismissal below. There is no allegation that any of the unnamed citizens ever authorized Fadem & Kanner’s representation, nor does Fa-dem & Kanner claim to be a member of the class. Fed.R.Civ.P. 23(e) states:

“A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.”

The problem here is not whether this notice directive is binding before a formal 23(c)(1) determination of the appropriateness of the class has been made, but whether Fadem & Kanner have standing to bring this appeal.

This court, in its previous review of the case, Inglewood v. Los Angeles, 451 F.2d 948, 951 (9th Cir. 1971), indicated that a suit brought as a class action must be treated as such until a formal 23(c)(1) decision is made:

“However, we recognize that the requirement such determination is to be made ‘as soon as practicable’ leaves much room for discretion. ‘[It] will obviously vary from case to case.’ Frankel, Some Preliminary Observations Concerning Civil Rule 23 (D.C. 1968) 43 F.R.D. 39, 41-42.
‘ * * * whatever uncertainties exist as to the precise status of an action brought as a class action, during the interim between filing and the 23(c)(1) determination by the court, it must be assumed to be a class action for purposes of dismissal or compromise under 23(e) unless and until a contrary determination is made under 23(c)(1).’ [Emphasis added]
Philadelphia Electric Co. v. Anaconda American Brass Co., (E.D. Pa., 1967) 42 F.R.D. 324, 326.
“We hold therefore, it was proper for the district court to assume the suit was a class action in order to determine if it had jurisdiction, without first making the finding required by 23(c)(1); and that this court must likewise assume this was a class action until a contrary determination is made.”

On October 2, 1974, while this opinion was in course of preparation, a letter was received notifying the court of a September 6, 1974, opinion of the Supreme Court of California, in the case of City of San Jose v. Superior Court of Santa Clara County, 12 Cal.3d 447, 115 Cal.Rptr. 797, 525 P.2d 701 (1974). In that case the court held that the trial court abused its discretion in certifying as a class action a suit against the City of San Jose on behalf of all real property owners “in the flight pattern” of the San Jose Municipal Airport. The letter to this court was sent jointly by Mr. Fadem, “Attorneys for Appellants,” and by Mr. Olson, City Attorney for Appellee City of Inglewood. There was no mention of Mr. Collins. The attorneys maintain that the action to dismiss the suit in federal court and the appeal herein was based upon an assumption that the class action for damages “could proceed in the State Court.” The letter states that because it now appeared as a result of the decision of the Supreme Court of California that this was no longer a correct assumption, both counsel for the City of Inglewood and the unnamed class members “request the Court to consider these changed circumstances in rendering its decision herein.”

We have duly noted the decision and opinion of the California Supreme Court. The situation in which the litigants now find themselves does not, however, alter the decision to be made here.

We dismiss the appeal. Fadem & Kanner, the special counsel of the City of Inglewood, is not a member of the proposed class and does not purport to be. On this appeal it purports only to represent as appellant “the unnamed citizens, residents and owners of property within the City of Inglewood, on whose behalf this class action was brought, hereafter referred to as the Injured Class.” Appellants’ Brief at 4. There has been no order by the district court determining whether the action “is to be so maintained” as a class action. There is no allegation that any of these unnamed appellants ever authorized Fadem & Kanner’s representation of them either originally or on appeal. The City of Inglewood had declined to proceed and has instructed its counsel to dismiss the action. Resolution No. 6444. It appears, therefore, that there is no standing to maintain the action by Fadem & Kanner, Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974); Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and thus no justiciability as a case or controversy within Article III of the Constitution. United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974); Flast v. Cohen, 392 U.S. 83, 95 n. 13, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

The appeal is dismissed.

      . The status of Robert H. Collins as a plaintiff-litigant is obscure. Fadem & Kanner does not mention him as one of their clients but refer only to the “unnamed citizens.” The attorney for the City of Inglewood states categorically that “Mr. Fadem presently is neither a party in interest himself nor a representa-five of any such party and, therefore, no longer has standing to assert any rights on appeal or otherwise on behalf of any party to this action.” Because Inglewood and Collins are both listed as “Appellees” on appeal and the City Attorney signed the brief for them, we assume both join in the dismissal motion.


text:
    UNITED STATES of America, Appellee, v. Robert ABNEY, Appellant.
    No. 73-2477.
    United States Court of Appeals, Fourth Circuit.
    Submitted Dec. 18, 1974.
    Decided Jan. 2, 1975.
    Certiorari Denied March 31, 1975.
    See 95 S.Ct. 1451.

      Paul Mark Sandler, Baltimore, Md. [court-appointed], on brief for appellant.
    David H. Hopkins, U. S. Atty. for the Eastern District of Virginia, and K. Gregory Haynes, Asst. U. S. Atty., on brief for appellee.
    Before BUTZNER, RUSSELL, and FIELD, Circuit Judges.
   PER CURIAM:

Robert Abney was convicted by a jury of second degree murder for having killed Enoch Creek, Jr. At the time of the murder, both men were inmates at Lorton Reformatory. On appeal, Abney contends that the trial court erroneously permitted the government to ask one of its witnesses, Gary Johnson, whether Ab-ney requested Johnson to provide an alibi and lie on his behalf. We find no error and affirm.

The evidence at trial indicated that Abney and Creek had had a dispute over drugs and that Creek had threatened Abney with a knife on the afternoon of the murder. The evidence further indicated that the fatal fight had begun in a dormitory bathroom and that Creek died as a result of stab wounds following a severe beating administered by Abney. Abney contended on his behalf that he had killed Creek in self-defense. During the government’s case in chief, before the claim of self-defense had emerged, Johnson had been asked whether he remembered whether Abney had asked him to provide an alibi for him. Johnson gave an affirmative reply and stated upon further questioning that Abney had asked him to say that they had been playing cards or dominoes on the afternoon of the killing. It is to this line of questioning that Abney now objects.

We find no error in the questioning engaged in by the government. Testimony concerning an attempted fabrication of an alibi is itself some affirmative evidence of guilt. United States v. Ford, 237 F.2d 57, 63 n. 10 (2nd Cir. 1956). Such testimony is thus probative evidence concerning a defendant’s state of mind which is properly presentable to a jury.

Accordingly, we dispense with oral argument and affirm the conviction.

Affirmed.


author: GODBOLD, Circuit Judge.

text:
    Robert P. STOKES, Plaintiff-Appellant, v. PEYTON’S INC., and Travco Plastics Company, Inc., Defendants-Appellees.
    No. 74-3290.
    United States Court of Appeals, Fifth Circuit.
    Feb. 13, 1975.
    Foy R. Devine, Thomas J. Hughes, Jr., Atlanta, Ga., for plaintiff-appellant.
    John A. Sherrill, Atlanta, Ga., for Pey-ton Inc.
    Neely, Freeman & Hawkins, Atlanta, Ga., for Travco Plastics Co., Inc.
    J. Bruce Welch, William Q. Bird, Eugene G. Partain, Daniel M. Coursey, Jr., Atlanta, Ga., for defendants-appellees.
    Before BROWN, Chief Judge, and GODBOLD and GEE, Circuit Judges.
   GODBOLD, Circuit Judge.

One of the two appellees, Peyton’s Inc., has filed a motion to dismiss the appeal on the ground notice of appeal was not timely filed.

This is the sequence of events:

July 18 [1974]: judgment entered in favor of appellees.

July 29: appellant filed motion for new trial.

August 13: with motion for new trial pending, appellant filed notice of appeal.

September 17: motion for new trial denied.

September 24: appellant paid his filing fee to this court.

December 9: appellant’s brief [printed] filed.

January 10: appellee Peyton filed its brief [printed] and motion to dismiss the appeal.

January 13: appellee Travco filed its brief [printed].

The argument of appellee Peyton’s Inc. runs this way: (a) notice of appeal was required to be filed within 30 days of entry of judgment appealed from, Rule 4(a), F.R.Civ.P.; (b) during the time a motion for new trial is pending the running of time for appeal is suspended, and the judgment is not final and thus not appealable until the motion is ruled on. Rule 59; 9 J. Moore, Federal Practice If 110.08 [3], at 120; (c) since premature, the appeal sought to be taken on August 13 is a nullity. Turner v. HMH Publishing Co., 328 F.2d 136 (CA 5, 1964); Stevens v. Turner, 222 F.2d 352, 354 (CA 7, 1955); Studer v. Moore, 153 F.2d 902 (CA 2, 1946); (d) no notice of appeal was filed within 30 days of September 17. Thus this court lacks jurisdiction of the appeal.

The per curiam opinion in Turner v. HMH supports appellee’s motion. But we think the correct rule is that of the later and carefully considered opinion by Judge Thornberry in Markham v. Holt, 369 F.2d 940 (CA 5, 1966). In that case the court entered an order granting motions for summary judgment on July 16. Appellant filed notice of appeal on August 6, noticing appeal from the July 16 “final order and/or judgment.” On August 10 the court by separate document filed the actual judgment. We held:

This Court has consistently adhered to the policy of exercising all proper means to prevent the loss of valuable rights when the validity of an appeal is challenged not because something was done too late, but rather because it was done too soon. Avery v. Fischer, 5th Cir. 1966, 360 F.2d 719, 723; Carter v. Campbell, 5th Cir. 1960, 285 F.2d 68; Bates v. Batte, 5th Cir. 1951, 187 F.2d 142, 143, cert. denied, 342 U.S. 815, 72 S.Ct. 29, 96 L.Ed. 616. The basic policy considerations underlying the limitation that a final judgment is a prerequisite to appealability are the excessive inconvenience and costs occasioned by piecemeal review on the one hand, and the danger of denying justice by needless delay on the other. Gillespie v. United States Steel Corp., 1964, 379 U.S. 148, 152-153, 85 S.Ct. 308, 311, 13 L.Ed.2d 199, 203; In re Forstner Chain Corp., 1st Cir., 1949, 177 F.2d 572, 575. The purpose of requiring the filing of a timely notice of appeal is to advise the opposing party that an appeal is being taken from a specific judgment, and such notice should therefore contain sufficient information so as not to prejudice or mislead the appellee. Wilson v. Southern Ry., 5th Cir. 1945, 147 F.2d 165. The assumption of jurisdiction in the instant case, we are convinced, does not violate the spirit of the final-judgment rule nor the notice-of-appeal requirements. This Circuit has long been committed to the rule that where, as in the instant case, it is obvious that the overriding intent was effectively to appeal, and no prejudice will result to the appellee, we are justified in treating the appeal as from a final judgment. See United States v. Stromberg, 5th Cir. 1955, 227 F.2d 903, 904; Atlantic Coast Line Ry. v. Mims, 5th Cir. 1952, 199 F.2d 582, 583, accord, Donovan v. Esso Shipping Co., 3d Cir. 1958, 259 F.2d 65, cert. denied, 1959, 359 U.S. 907, 79 S.Ct. 583, 3 L.Ed.2d 572.

369 F.2d at 942. In similar contexts the Ninth Circuit has reached the same result in a series of cases. Firchau v. Diamond National Corp., 345 F.2d 269 (CA 9, 1965); Ruby v. Secretary of United States Navy, 365 F.2d 385 (CA 9, 1966); Curtis Gallery & Library, Inc. v. United States, 388 F.2d 358 (CA 9, 1967); Eason v. Dickson, 390 F.2d 585 (CA 9, 1968). As Judge Thornberry wrote in Markham, the provision that the Rules be construed “to secure the just, speedy, and inexpensive determination of every action”, Rule 1, F.R.Civ.P., requires that a defect such as this be treated as too insubstantial to deprive us of jurisdiction. “[I]t is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities.” Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 230, 9 L.Ed.2d 222, 225 (1962). The per curiam in Turner v. HMH neither referred to nor gave effect to these policies. As between it and Markham, we think that we are required to follow the latter. See also 9 J. Moore, Federal Practice If 204.14 at 983:

These cases [Markham and the Ninth Circuit cases] make it clear that an appeal should not be dismissed because it was technically premature if in fact an appealable judgment or order was rendered below, the appellant clearly manifested his intent to appeal from it and the prevailing party below can show no prejudice resulting from the prematurity of the notice.

There is no prejudice shown in this instance.

The motion is denied.

      . Markham does not refer to Turner.


author: HEANEY, Circuit Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RAVEN INDUSTRIES, INC., Respondent.
    No. 74-1319.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 11, 1974.
    Decided Dec. 26, 1974.
    Rehearing and Rehearing En Banc Denied Jan. 24, 1975.
    Aileen Armstrong, Atty., National Labor Relations Board, Washington, D. C., for petitioner.
    Gale E. Fisher, Sioux Falls, S. D., for respondent.
    Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and MEREDITH, Chief District Judge.

       JAMES H. MEREDITH, Chief Judge, Eastern District of Missouri, sitting by designation.

   HEANEY, Circuit Judge.

The National Labor Relations Board petitions this Court to enforce its order requiring Raven Industries, Inc., upon request, to sign a collective bargaining agreement with the Union and to give retroactive effect to its terms to January 30, 1973, or absent a request, to bargain with the Union and embody any understanding reached in a signed agreement. The order also requires Raven to post appropriate notices.

On February 2, 1972, the Union was certified as the collective bargaining representative of the production and maintenance employees of Raven at Huron, South Dakota. When the Union requested Raven to meet and bargain, Raven refused to do so in Huron, stating that it would meet only at its main office in Sioux Falls,, one hundred and twenty miles away. After the Union filed a charge with the Board, based on Raven’s refusal to bargain at Huron, Raven changed its mind and agreed to bargain in good faith at Huron and to sign any agreement reached.

Thereafter, a number of bargaining sessions were held, and what purported to be a final draft of an agreement was prepared by Raven for signature on January 30, 1973. On that date, it developed that there was an incomplete meeting of the minds as to whether Raven would continue its existing policy of paid sick leave. As a result, the agreement was not signed by the parties.

On February 7, 1973, the Union filed an unfair labor practice charge, alleging, in substance, that Raven’s refusal to sign an agreement incorporating existing sick leave benefits within it or by reference was violative of §§ 8(a)(1) and (5) of the National Labor Relations Act. 29 U.S.C. § 151 et seq.

On March 30, 1973, the Regional Director refused to issue a complaint on the ground that

* * * [t]he investigation failed to disclose sufficient evidence to establish that there was not a good faith misunderstanding as to whether the Employer had agreed to continue the existing sick pay benefits or the charging party accepted the Employer’s proposal that sick leave would be without pay. * * *

On April 11, 1973, the Union informed Raven that it would execute the agreement on the basis of Raven’s understanding. The Union’s letter stated in part:

At this time the union, in view of the board ruling on its unfair labor practice charge on this subject, accepts the company position and language on sick leave and requests that the contract be executed as otherwise previously agreed to.

On April 12, 1973, Raven refused to execute any agreement on the grounds that the Union’s year of certification had expired and that the Union no longer represented a majority of the employees.

On April 17, 1973, the Union filed an unfair labor practice charge, contending that Raven’s failure to sign the agreement on Raven’s terms was in violation of §§ 8(a)(1) and (5) of the Act.

On July 16, 1973, the Regional Director issued a complaint. That complaint alleged that Raven and the Union had reached an agreement on all terms for a collective bargaining agreement by January 30, 1973, and that Raven agreed to prepare a draft of said contract; that when the draft was presented by Raven to the Union, the parties were unable to agree whether Raven’s draft accurately reflected the agreement reached during the negotiations; that on April 11, 1973, the Union acceded to Raven’s position and agreed to sign the collective bargaining agreement submitted to it; that on April 12, 1973, Raven refused to execute the agreement submitted; and that from February 1, 1973 to April 10, 1973, Raven sponsored petitions seeking to de-certify the Union. The Regional Director claimed that Raven’s failure to execute the contract prepared by it and its sponsorship of the decertification petition was violative of §§ 8(a)(1) and (5) and §§ 2(6) and (7) of the Act.

An Administrative Law Judge held an evidentiary hearing. He found that the parties had reached an understanding as to all of the terms of the collective bargaining agreement by January 30, 1973, that a continuance of sick pay in accordance with note 2 of this opinion was among the fringe benefits agreed to by the parties, and that Raven’s refusal to sign the collective bargaining agreement was violative of the Act. He further found that Raven had assisted and encouraged the petition to decertify the Union, and that this assistance was vio-lative of the Act. He recommended that Raven be ordered:

(1) Upon request, to forthwith execute and sign the collective bargaining agreement as requested by the Union at the parties’ January 30, 1973, meeting, with the term and expiration date thereof calculated from the date of Raven’s execution thereof without prejudice to any wage increase or benefits granted in the interim.

(2) To continue in effect its existing policies regarding sick pay and sick leave.

(3) If no request to sign is made by the Union, then upon request, to bargain in good faith with the Union and to embody in a signed agreement any understanding reached.

(4) To post appropriate notices.

The Board affirmed the rulings, findings and conclusions of the Administrative Law Judge. Its decision is reported at 209 N.L.R.B. No. 66, 85 L.R.R.M. 1602 (1974). It adopted the Administrative Law Judge’s recommended order with one modification. It deleted a provision requiring that the expiration date be calculated from the date of Raven’s execution of the agreement and substituted therefor the requirement that Raven,

* * * [ujpon request, forthwith execute and sign the collective-bargaining contract agreed to on January 30, 1973, and give retroactive effect to the terms and conditions of the contract from January 30, 1973, with interest at 6 percent per annum for the loss of any benefits which would have accrued to the employees under the contract [Raven] refused to sign.

We enforce the Board’s order with three modifications:

(1) The effective date of the contract, if the Union chooses to have it signed, shall be April 11, 1973, and retroactive effect shall be given to its terms and conditions to that date with interest at six percent per annum for the loss of any benefits which would have accrued to the employees under the contract Raven refused to sign. The contract shall by its terms continue in effect for three years, until April 11, 1976, with annual wage reopeners.

(2) Raven is not required to consider the paid sick leave provisions set forth in note 2 of this opinion as being a part, by reference or otherwise, of the agreed to collective bargaining agreement.

(3) If the Union does not request that the agreement be signed, Raven’s obligation to bargain at the Union’s request shall continue- for a period of one year from the effective date of the order of this Court.

We make these modifications for two reasons. First, the complaint was issued on the theory that no meeting of the minds occurred until April 11, 1973. In this respect, it was consistent with the earlier decision of the Regional Director dismissing the Union’s charge that the parties had been in agreement as to all the terms and conditions of the collective bargaining agreement on January 30, 1973. The record does not reveal that any amendments to the complaint were sought during or at the end of the proceedings. Moreover, the Union waived its right to insist on an inclusion of sick pay in the contract by agreeing to accept the contract as proposed by Raven on April 11, 1973.

Second, substantial evidence on the record as a whole does not support the Board’s finding that the parties were agreed by January 30, 1973, that paid sick leave would be included in the collective bargaining agreement. The Administrative Law Judge gave weight to the fact that paid sick leave was still in effect as of the date of the hearing in reaching the conclusion that the parties had agreed to paid sick leave. He was in error in so doing. The fact that Raven elected to continue certain fringe benefits in effect pending final signing of the collective bargaining agreement is not evidence that they had agreed that they would continue to do so after the collective bargaining agreement was signed. The Administrative Law Judge suggested that it would be unfair for Raven to discontinue paid sick leave because the Union had won very little as a result of its negotiations. The fairness of Raven’s position is not for the Board to decide.

Three witnesses for the General Counsel testified that they had served on the Union committee and that company negotiators had told the Union committee that Raven would continue its policy of providing sick pay for employees who were out for short periods of time. The Administrative Law Judge and the Board credited this testimony and discredited the testimony of Raven witnesses to the contrary. We are convinced, by a reading of the entire record, that they were in error in so doing. See N.L.R.B. v. Payless Cashway Lumber Store of South St. Paul, Inc., 508 F.2d 24, at 27-28 (8th Cir. 1974).

Pamela Sarahan, the principal Union witness, signed an affidavit given to the Regional Director of the Board at the time the February 7, 1973, charge was being investigated to the effect that no agreement on sick pay had been reached by January 30. This statement was directly contrary to the testimony that she gave at the hearing.

The collective bargaining agreement submitted by Raven for the Union’s signature did not contain any provision with respect to paid sick leave, nor did it contain a clause indicating that existing employee benefits would continue in effect. On January 30, 1973, the Union submitted its comments on the draft agreement. These handwritten notes indicate that the Union desired to include a provision in the contract that fringe benefit policies would remain as is, and that these fringe benefit policies included sick pay. The exhibit indicates that Raven agreed to most of the suggested changes in the draft made by the Union, but that Raven did not agree to the change with reference to sick benefits.

Joanne Claassen, a member of the negotiating committee, testified that the contract consisted of three exhibits, General Counsel Exhibit Nos. 4A, 4B and 4C. Article IX, Section 2, of Exhibit 4A states specifically that “sick leave will be without pay.” Miss Claassen’s explanation that this provision referred to absences of longer than two weeks is unpersuasive.

The testimony of the business agent, Stan Frank, on the question of sick pay was vague and uncertain. He stated:

I called Mr. Burke [Raven’s attorney and chief negotiator] to tell him that we had ratified the contract and that we were ready to meet with the company. As a part of the conversation, I mentioned there had been a rumor at the plant and during our ratification meeting, Carol Pribyl and maybe another girl or so talked about the fact that there was some discussion as to whether we had sick pay.

The Administrative Law Judge then asked Mr. Frank what Burke had said, and he replied:

* * * He didn’t make big of what I had mentioned. I don’t think he ever replied to it.

In sum, the most that the record shows is that there was a misunderstanding between Raven and the Union as to whether sick pay benefits were to be included in the contract. The evidence, as a whole, simply does not support the Administrative Law Judge’s finding concurred in by the Board that the parties had in fact agreed to the inclusion.

Inasmuch as Raven concedes in its brief the irregularity of its action with respect to other matters charged, there is no need to do anything more than enforce the Board’s order as modified by this opinion.

      . Local 605, Allied Industrial Workers of America, AFL-CIO.

      . Raven’s “Employee Information Booklet” set forth the following provisions with respect to sick leave:
      Each permanent, full time hourly paid employee will be eligible for paid sick leave on a yearly basis according to the following schedule:

        Length of Service Days of Sick Pay

      0- 1 year 0 days
      1- 5 years 7Vz days
      5-10 years 10 days
      Over 10 years 12V2 days

      . On February 9, 1973, with assistance from Raven, a decertification certificate had been filed by Union employees. The petition was subsequently withdrawn.

      . This portion of his recommended order was included in a footnote which read, in part, as follows:
      * * * The Union’s April 11, expression of willingness in effect to enter into any agreement desired by the Employer was no more than a last desperate gambit or test by the Union of the Employer’s bona tides —a test which the Employer failed by out-of-hand refusing to execute even such an agreement. As heretofore noted, the Employer has in no way at any time changed its existing policies regarding sick pay and sick leave — indeed, they remain today as they have always been. It would be inequitable to hold the Union to the position of desperation which it was willing to take on April 11, but which the Employer refused. * * * [Emphasis included.]

      . The Board stated:
      The Administrative Law Judge * * * recommended * * * that [Raven] should be required to execute and sign the collective-bargaining contract agreed to on January 30, 1973, effective as of the date it is actually executed by [Raven]. * * * [S]uch a requirement would extend the agreed-upon term of the collective-bargaining contract and would amount to a change of a substantive contractual provision. * * * [T]he Act does not envision that the Board require a company or a union to agree to a substantive provision not embodied in the collective-bargaining agreement. * * *
      Accordingly, we have modified the recommended Order of the Administrative Law Judge by substituting an Order' which-accords with our normal remedies in cases of this type. * * *

      . We find no merit to Raven’s contention that the Union was without authority to sign the contract on April 11, 1973, because it had not been ratified by its membership. Ratification is an internal union matter. Employer insistence on ratification as a condition to agreement violates §§ 8(a)(1) and (5) of the Act. Houchens Market of Elizabethtown, Inc. v. NLRB, 375 F.2d 208, 212 (6th Cir. 1967).


author: PER CURIAM.

text:
    Regina BIG EAGLE and Willard Big Eagle, Appellants, v. Leonard E. ANDERA, Individually and in his official capacity as Judge of the Crow Creek Sioux Tribal Court, et al., Appellees.
    No. 74-1290.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 16, 1974.
    Decided Jan. 8, 1975.

      Gary R. Thomas, Ft. Thompson, S. D., Steven L. Pevar, S. D. Legal Services, Mission, S. D., for appellants.
    David L. Bergren, Ft. Pierre, S. D., for appellees.
    Before HEANEY, BRIGHT and ROSS, Circuit Judges.
   PER CURIAM.

Regina Big Eagle and her brother, Willard Big Eagle, both enrolled adult members of the Crow Creek Sioux Tribe of South Dakota, filed habeas corpus petitions, pursuant to 25 U.S.C. § 1303 (1970), in the United States District Court for the District of South Dakota. They sought to be released from serving sentences for violation of the Tribe’s disorderly conduct statute, § 19, Crow Creek Sioux Tribe Penal Code, and the Tribe’s contributing to the delinquency of a minor statute, § 9, Crow Creek Sioux Tribe Penal Code. They contended that they were unjustly confined because, inter alia, both statutes violate (1) the due process guarantee of the Indian Bill of Rights, 25 U.S.C. § 1302(8), insofar as they are so vague that persons of ordinary intelligence must guess at their meaning, and (2) the free speech guarantee of the Indian Bill of Rights, 25 U.S.C. § 1302(1), insofar as they may punish protected speech. The district court rejected these contentions and denied the petitions by a memorandum decision filed April 1, 1974. Petitioners appeal from that decision.

The evidence heard by the district court in this case focused upon the proceedings that took place in Tribal Court before Tribal Judge Walter Peck. The petitioners and Judge Peck, a respondent below, gave oral testimony before the district court on procedures which had been followed in the Tribal Court. Although the respondents presented no evidence of how the questioned statutes had been applied in the Tribal Court to persons other than the petitioners, the district judge, in rejecting the constitutional attack on the statutes, said:

The case of Wainwright v. Stone, [414 U.S. 21,] 94 S.Ct. 190 [38 L.Ed.2d 179] (1973), is controlling wherein it was held:
The judgment of federal courts as to the vagueness or not of a state statute must be made in the light of prior state constructions of the statute. For the purpose of determining whether a state statute is too vague and indefinite to constitute valid legislation “we must take the statute as though it read precisely as the highest court of the State has interpreted it.” Id. at 192.
There was no evidence that these statutes were applied in any vague or inconsistent manner. No bad faith or harassment has been shown. In fact, the record is clear that both statutes have been interpreted consistently and it cannot be said that men of common intelligence must guess at its meaning or differ as to its application.

I.

The Tribe, in urging us to affirm the district court, makes the following statement in its brief on the challenge to the disorderly conduct statute:

Victoria Aikens acted as Chief Judge for 15 years prior to 1972, and during that time without exception, prosecution under the disorderly conduct statute was limited to cases involving fighting and intoxication. There has never been a prosecution under this statute or a conviction for “disturbing or annoying any public or religious assembly,” and the application of the statute in that regard has been consistent. In the instant case, the facts revealed that the defendants were not charged with disturbing or annoying any public or religious assembly.
Appellants also urge that the term “disorderly condition” is overbroad. The question may be answered quite simply. In the entire history of the Tribal Court system, no one has ever been charged with being in a “disorderly condition.” The interpretation has been consistent throughout, that if a person under the influence of intoxicants appeared in a place in a drunken state, and if his appearance while in the drunken state prevented others from enjoying their individual activities free' from disturbance, then such a person, where proven, was considered in an intoxicated an [sic] disorderly condition.

Appellants Regina and Willard Big Eagle offer this response to the Tribe’s statement:

This allegation is patently false. Even Victoria Aikens was astounded to hear of Appellees’ allegation, and she signed an affidavit, appendixed to this Reply, admitting that the disorderly conduct statute “was so broad and vague . ... [that it] could have been extended to other disorderly situations involving speaking.'” [Appendix A] Indeed, during Judge Ai-kens tenure, countless arrests and convictions were obtained under the disorderly conduct statute where fighting and intoxication were not involved. [Brackets in original, footnote omitted.]

No evidence supporting either of these conflicting contentions appears anywhere in the record as made in the district court. We agree with the argument of Regina and Willard that, if tested by standards applied to communities outside an Indian reservation, the Tribe’s disorderly conduct statute appears facially vague and overbroad. See Wiegand v. Seaver, 504 F.2d 303 (5th Cir. 1974); Original Fayette County Civic and Welfare League v. Ellington, 309 F.Supp. 89, 92 (W.D.Tenn.1970) (three-judge court). See also Lewis v. City of New Orleans, 415 U.S. 130, 133-134, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974) (overbreadth); Papachristou v. City of Jacksonville, 405 U.S. 156, 162-171, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) (vagueness); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (overbreadth); Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) (vagueness); Lanzetta v. New Jersey, 306 U.S. 451, 453-458, 59 S.Ct. 618, 83 L.Ed. 888 (1939) (vagueness). But we are not prepared to say that a limiting construction of the statute, well-known to the Indian reservation society, would not, if made by the Tribal Court, cure its facial vagueness and overbreadth. Compare Wainwright v. Stone, 414 U.S. 21, 22-23, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973), Colten v. Kentucky, 407 U.S. 104, 109-111, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), and Chaplinsky v. New Hampshire, 315 U.S. 568, 572-574, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), with Lewis v. City of New Orleans, supra, 415 U.S. at 133-134, 94 S.Ct. 970, and Gooding v. Wilson, supra, 405 U.S. at 520-528, 31 L.Ed.2d 408. Since this is a case of first impression arising under the Indian Bill of Rights, 25 U.S.C. §§ 1301-1303, we believe that we must approach cautiously the issues that it presents. We ought not rule on the question presented here where the record fails to establish whether the Tribe’s disorderly conduct statute has been properly restricted in meaning by consistent and authoritative construction by the Tribal Court.

Lest we be misunderstood, we do not say that this statute can necessarily be saved by a restricted interpretation. Rather, we decline to rule on its validity without evidence of its enforcement and construction.

II.

We view the contributing to the delinquency of a minor statute differently from the disorderly conduct statute. In their analysis of this statute, Regina and Willard direct their attention exclusively at its possible vagueness. They argue that the language of the statute, such as “encourage” or “contribute” to delinquency, could subject to prosecution an adult who, for example, smokes in front of a child, refrains from sending a child to church, “wanders the streets at night,” is “unemployed,” “associates with unsavory characters,” or “uses profane language in public.” Thus, they conclude, the statutory language is vague and therefore fails to give notice of what conduct is criminal.

The potential vagueness of a statute, as applied in hypothetical cases, is no ground for holding the statute unconstitutional. A defendant cannot claim that a statute is unconstitutional in some of its reaches if it is constitutional as applied to him. E. g., Parker v. Levy, 417 U.S. 733, 755-57, 94 S.Ct. 2547, 2561-2562, 41 L.Ed.2d 439 (1974); Yazoo & Mississippi Valley R.R. v. Jackson Vinegar Co., 226 U.S. 217, 219-220, 33 S.Ct. 40, 57 L.Ed. 193 (1912). Justice White articulated this rule in dissent in Coates v. City of Cincinnati, supra:

It is possible that a whole range of other acts defined with unconstitutional imprecision, is forbidden by the ordinance. But as a general rule, when a criminal charge is based on conduct constitutionally subject to proscription and clearly forbidden by a statute, it is no defense that the law would be unconstitutionally vague if applied to other behavior. Such a statute is not vague on its face. It may be vague as applied in some circumstances, but ruling on such a challenge obviously requires knowledge of the conduct with which a defendant is charged. [402 U.S. at 618, 91 S.Ct. at 1690.]

See Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Dombrowski v. Pfister, 380 U.S. 479, 491-492, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); Williams v. United States, 341 U.S. 97, 100-101, 71 S.Ct. 576, 95 L.Ed. 774 (1951).

Appellants pled guilty to “provid[ing] intoxicating beverages for Wilbert Big Eagle and Donovan McGhee,” minors for whom such beverages were otherwise unobtainable. The record discloses that these minors were drunk when apprehended by police. We can infer from the guilty pleas of the appellants that their conduct in supplying them with intoxicants caused Wilbert’s and Donovan’s drunkenness. There can be no real doubt that by such conduct appellants were “contributing” to the delinquency of minors. Thus, entirely without regard to the statute’s possible vagueness as applied to other defendants, because the statute is not vague as applied to Regina and Willard Big Eagle, their attack on its constitutionality must fail.

Summary

We hold that appellants’ attack on the Crow Creek Sioux Tribe’s contributing to delinquency statute is without merit, for the appellants’ conduct falls squarely within the proscription of the law. However, we remand this case for an evidentiary hearing on the Tribal Court’s construction of the disorderly conduct statute and for a re-evaluation of the appellants’ entitlement to habeas corpus relief in the light of the evidence presented at such hearing.

We remand for further proceedings in conformity with this opinion.

      . Both petitioners pled guilty after proceeding pro se before the Tribal Court. Both received a sentence of 30 days’ imprisonment and a fine of $50 for disorderly conduct and a sentence of imprisonment not exceeding 120 days and a fine of $200 for contributing to the delinquency of a minor. Regina served her sentences from December 28, 1973, to January 28, 1974, when she was released on probation for one year. Willard served his sentences, including one, not at issue here, for malicious mischief, from December 28, 1973, to February 22, 1974, when he was released on his own recognizance pending the outcome of this habeas corpus petition.

      . The disorderly conduct statute provides:
      Any Indian who shall engage in fighting in a public place, disturb or annoy any public or religious assembly, or appear in a public or private place in an intoxicated and disorderly condition, or who shall engage in any other act of public indecency or immorality, shall be deemed guilty of disorderly conduct, and upon conviction thereof, shall be sentenced to labor for a period not to exceed thirty (30) days, or to a fine not to exceed $60.00, or to both such imprisonment and fine with costs. [§ 19, Crow Creek Sioux Tribe Penal Code.]

      . The contributing to delinquency statute provides:
      Any Indian who shall by any act, cause, encourage, or contribute to the delinquency of any child, as such phrase with reference to children is defined by Chapter 5.01, Section 5.0102, or who shall in any manner be responsible therefor, shall be deemed guilty of an offense, and upon conviction thereof, shall be sentenced to labor for a period of not to exceed six (6) months, or to a fine not to exceed $360.00, or to both such imprisonment and fine with costs. [§ 9, Crow Creek Sioux Tribe Penal Code.]

      . Section 1302(8) provides:
      No Indian tribe in exercising powers of self-government shall—
      ******
      (8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law[J

      . Section 1302(1) provides:
      No Indian tribe in exercising powers of self-government shall—
      (1) make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances[.]

      . Walter Peck, as Tribal Judge, appears as a respondent in the district court proceeding. On appeal, Leonard Andera appears as an appellee. We assume he has replaced Peck as Tribal Judge.

      . The testimony related primarily to whether the appellants had been denied assistance of counsel, an issue not raised on this appeal.