text:
    UNITED STATES of America, Plaintiff-Appellee, v. Larry Eugene DOWNEN, and Keith Paul Smith, Defendants-Appellants.
    Nos. 73-1974, 73-1975.
    United States Court of Appeals, Tenth Circuit.
    April 23, 1974.
    As Amended on Denial of Rehearing May 22, 1974.

      Robert J. Roth, U. S. Atty., E. Edward Johnson, Richard L. Meyer, Asst. U. S. Attys., Topeka, Kan., for appellee.
    Thomas C. McKee, Denver, Colo., for appellants.
    Before HILL, BARRETT and DOYLE, Circuit Judges.
   BARRETT, Circuit Judge.

Larry Eugene Downen and Keith Paul Smith appeal from sentences imposed following jury verdicts of guilty. Downen and Smith were indicted on charges involving transportation of stolen pickup trucks in interstate commerce, concealment and sale of stolen pickup trucks, and conspiracy to commit these offenses, in violation of 18 U.S.C.A. §§ 2, 371, 2312 and 2313. Downen was found guilty on all five counts with which he was charged, i. e., Counts 1, 5, 6, 8 and 9. Smith was found guilty on 8 of the 9 counts with which he was charged, i. e., Counts 1, 2, 3, 4, 5, 6, 8 and 9.

On appeal the appellants claim trial court error: (1) in denying their Motions for Judgment of Aquittal as to Counts 1, 5, 6 and 8, wherein they alleged lack of substantial evidence to support the verdicts of guilty; (2) in allowing a blackboard chart exhibit to remain before the jury during trial, and to be sent to the jury room during deliberations; and (3) in giving Instruction 30 which they allege to be inconsistent with their right to be proved guilty beyond a reasonable doubt.

The trial lasted eight days. Some thirty-eight witnesses testified. Approximately 51 exhibits were admitted in evidence. Counts 1, 5, 6 and 8 are the only counts resulting in convictions challenged on appeal. We shall endeavor to set forth a factual summary of each of the four counts involved in this appeal.

Count 1 involved a brown and white 1968 Chevrolet pickup truck stolen in Roeland Park, Kansas, in October, 1971, owned by a Mr. David Steinle. Its vehicle identification number (hereinafter referred to as VIN) was CE148J143119. Thereafter the vehicle was traded at Ft. Smith, Arkansas, by a man named Keith Paul Smith, whose name was on the title, to one Gary Goodwin, who testified that he knew both Downen and Smith. The vehicle, when traded, bore a different VIN. Ann Fox, formerly married to Downen, testified that she spoke with him before the Steinle vehicle had been stolen and that he stated that he and others wanted to send some mail to her house involving pickup truck and car titles. She also related observing the appellants using a cutting torch on the frame of a late model Ford truck in a garage in Kansas City, Kansas. Smith and Downen were observed by a Bob Williams working on a 1967 to 1969 Chevrolet pickup truck matching the description of the vehicle traded to Gary Goodwin.

Counts 5 and 6 involved charges of concealing and selling a 1970 Ford pickup truck which had been stolen in Joplin, Missouri, and driven to Overland Park, Kansas. It bore VIN F107KG55948. Joe Downing testified that a blue 1970 Ford one-half ton pickup truck owned by him had been stolen at Joplin, Missouri, in late March, 1972, and recovered at Overland Park, Kansas, about three weeks later. Downing’s father testified in confirmation of his son’s ownership of and the theft of the vehicle. Warsop, a used car dealer in Overland Park, Kansas, testified that a vehicle later identified as Downing’s was brought to his place of business by one James Hilt who, throughout the record, is identified as an associate of the appellants in the various transactions. It was ascertained- that the VIN plate on this vehicle had been tampered with, i. e., changed to F10GKJ58951, and that the paint code and body style did not match. Other evidence disclosed that a 1970 Ford pickup truck owned by Mr. and Mrs. Burnfin had been wrecked, sold for salvage through a Missouri used car firm, and thereafter sold to Downen in early March, 1972. The VIN on this vehicle had been transferred to the vehicle brought to Overland Park by Hilt. Ann Fox testified that she had seen Smith driving a late model blue Ford pickup truck into a garage in Kansas City, Kansas, and that Smith had told her that he got the vehicle at Joplin, Missouri. She stated that she had observed cutting activity relating to the vehicle, and that she was’ thereafter asked to pose as Mr. Burnfin’s girl friend in an effort to expedite the sale of the pickup truck. Some of the documents relating to the vehicle involved in the salvage transaction were identified as containing appellant Smith’s handwriting.

Count 8 charged appellants with concealing and selling a 1968 Ford pickup truck which had been stolen from John L. Danuser in Fulton, Missouri, on February 17, 1972, bearing VIN F10YKD33007. Danuser testified that he recovered the vehicle in Kansas City, Kansas, in May, 1972. Although the VIN had been welded over and the other VIN plate removed, he was able to identify the vehicle by reason of certain peculiarities. The vehicle then contained a door plate with a VIN F10AKD03261 and a title evidencing assignment to Downen. Roy Hilt, Sr., testified that Jim Hilt, who had been previously identified by Ann Fox as being involved in the illegal transactions of Downen and Smith, had brought the truck to Kansas City, Kansas, where he (Roy Hilt) traded some other vehicles to Jim Hilt for the 1968 pickup truck. There was evidence that when this vehicle was later examined, it was discovered that the true VIN plate had been burnt off of the frame. The false plate was easily removed from the left door. A Robert Guinn, employed by a St. Joseph, Missouri, salvage firm, testified that he sold a salvaged 1968 Ford pickup truck, bearing the exact VIN found on the left door, to Downen a year and a half or two years previously. He identified Downen in the courtroom.

I.

Appellants allege Trial Court error in denial of their Motions for Judgment of Acquittal as to Counts 1, 5, 6 and 8. They contend that there was not substantial evidence to support the verdicts of guilty. We disagree.

The appellants concede that in passing upon the sufficiency of the evidence to support a verdict of guilty, it is well established in this Circuit that the appellate court does not weigh conflicting evidence nor consider the credibility of the witnesses and, further, that it must view the evidence, both direct and circumstantial, in the light most favorable to the prosecution, together with all reasonable inferences that may be drawn therefrom. United States v. Addington, 471 F.2d 560 (10th Cir. 1973); United States v. Ireland, 456 F.2d 74 (10th Cir. 1972); United States v. Weiss, 431 F.2d 1402 (10th Cir. 1970). And in passing on a post-guilty Motion for Acquittal and/or for New Trial, the Trial Court must apply the same tests. Goff v. United States, 446 F.2d 623 (10th Cir. 1971); Lewis v. United States, 420 F.2d 1089 (10th Cir. 1970); Mason v. United States, 408 F.2d 903 (10th Cir. 1969), cert. denied 400 U.S. 993, 91 S.Ct. 462, 27 L.Ed.2d 441 (1971); Mares v. United States, 409 F. 2d 1083 (10th Cir. 1968), cert. denied 394 U.S. 963, 89 S.Ct. 1314, 22 L.Ed.2d 564 (1969).

We have held that a conviction based upon circumstantial evidence only, cannot be objected to on that ground alone. United States v. Brown, 446 F.2d 1119 (10th Cir. 1971); Myers v. United States, 415 F.2d 318 (10th Cir. 1969). Furthermore, we have held that one can be convicted on the uncorroborated testimony of an accomplice or an informer. United States v. Owens, 460 F.2d 268 (10th Cir. 1972); Johns v. United States, 227 F.2d 374 (10th Cir. 1955); Todd v. United States, 345 F.2d 299 (10th Cir. 1965).

Appellants urge us to apply the rule that, in circumstantial evidence cases, the inferences to be drawn from the evidence must not only be consistent with guilt, but inconsistent with every reasonable hypothesis of innocence, or at least the circumstantial evidence must do more than raise a mere suspicion of guilt, citing Davidson v. United States, 411 F.2d 75 (10th Cir. 1969). We observe that this is not exclusively a circumstantial evidence case, but even so, we have reviewed this record mindful of this language in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946):

Guilt .... remains individual and personal, even as respects conspiracies. * * * When many conspire, they invite mass trial .... Even so, the proceedings are exceptional to our tradition and call for use of every safeguard to individualize each defendant in relation to the mass.

328 U.S. at 772-773, 66 S.Ct. at 1252. One of the burdens imposed on the government, in keeping with “the call for use of every safeguard”, is proof that each defendant charged with conspiracy must have the criminal intent necessary to meet the requirements set forth in the substantive offense. Ingram v. United States, 360 U.S. 672, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1959). The essence of the crime of conspiracy as defined in 18 U.S.C.A. § 371 is an agreement between two or more persons to commit an offense against the United States, supplemented with overt action by one or more of the conspirators to effectuate the agreement. Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942); United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940). In accordance therewith, we have held that mere knowledge, approval or acquiescence in the object of the conspiracy, without an agreement to cooperate in achieving such object and purpose, does not make one a party to a conspiracy. Jones v. United States, 365 F.2d 87 (10th Cir. 1966).

It would serve no useful purpose to recite in detail the complicated intertwining evidence contained in the long record before us in order to justify the guilty verdicts found by the jury as the sole trier of fact. We hold that there is substantial evidence in the record supporting the jury verdicts of guilty, and the Trial Court’s denial of the appellants’ post-guilty Motions for Acquittal and/or New Trial. United States v. Ramsdell, 450 F.2d 130 (10th Cir. 1971); United States v. Mecham, 422 F.2d 838 (10th Cir. 1970).

The court of appeals will not sift the record in order to make an independent determination of the sufficiency of the evidence. Golubin v. United States, 393 F.2d 590 (10th Cir. 1968), cert. denied 393 U.S. 831, 89 S.Ct. 100, 21 L.Ed.2d 102 (1968). Appellate courts cannot try a case de novo, and Trial Court findings based on sharply conflicting evidence are conclusively binding on appeal, United States v. 79.95 Acres of Land, More or Less, In Rogers County, State of Oklahoma, 459 F.2d 185 (10th Cir. 1972). Jurors are charged with the duty of assessing the credibility of witnesses and determining the weight to be given any testimony, taking into consideration the appearance and general demeanor of each and every witness. United States v. Spoonhunter, 476 F.2d 1050 (10th Cir. 1973); United States v. Miller, 460 F.2d 582 (10th Cir. 1972); United States v. Sierra, 452 F. 2d 291 (10th Cir. 1971).

II.

Appellants argue that the Trial Court erred in allowing Exhibit 50, a blackboard chart prepared by the Government, summarizing its theory of the case, to remain before the jury throughout the trial and to be sent to the jury room during jury deliberations. They argue that the exhibit was not admitted into evidence, was not admissible evidence, and that its use was extremely prejudicial to them.

The blackboard “chart” had been prepared by the Government marked Exhibit 50, and presented to the Court and counsel for appellants, out of the presence of the jury, prior to commencement of trial. It contained in summary form the Government’s “case” as to each count in the indictment, including a brief description of each vehicle involved, the vehicle VINS, with dates noted when the respective vehicles were stolen and later recovered.

The record does not reflect that the exhibit was either offered or received in evidence. Prior to trial, counsel for appellants objected to its demonstrative use from an evidentiary point of view, until and unless the Government had introduced in evidence facts supporting each notation contained on the blackboard chart. In addition, the appellants objected to the prejudicial effect of permitting the Government to “select” certain evidence for special treatment in that it would be continually “in front” of the jury. They further argued that, assuming that all of the evidence on the backboard chart had been presented by the Government and admitted, then and only then could the Government employ it, and then only in closing arguments. The Government, on the other hand, contended that, the blackboard chart was needed in order to avoid total confusion on the part of the jury, in view of the complicated factual transactions. The Court ruled that the blackboard chart could be used as a demonstrative exhibit.

The Trial Court gave special cautionary instructions to the jury that the blackboard chart was not evidence, and was merely being permitted to be shown them in order to aid them in keeping track of the various vehicles involved. The Court observed that the controlling thing is the evidence and not what is on the blackboard and, that at the conclusion of the Government’s case, “if they haven’t hooked these things up, of course, it can be stricken and removed.” The Court carefully admonished the jury with regard to the precise and limited purpose of the exhibit during trial. Further, the Court gave a supplemental admonition after the jury had retired to deliberate, when, at the specific request of the jury foreman, and over the objection of appellants, the Court permitted the blackboard chart to be taken into the jury room. The Court painstakingly instructed the jury that matters on the blackboard contained only the Government’s theory of the case and were not evidence. The jury received the blackboard at 11:45 a. m., recessed for lunch and returned for deliberations at about 1:00 p. m. The jury was returned into the courtroom at 3:00 p. m., at which time the verdicts were announced.

We récently reaffirmed the rule that whether an indictment may be taken to the jury room is a matter within the sound discretion of the Trial Court. United States v. Skolek, 474 F.2d 582 (10th Cir. 1973). If an indictment is taken to the jury room the Court must give a cautionary instruction that it is not in evidence and is not to be treated as such. Skolek, supra; Little v. United States, 73 F.2d 861 (10th Cir. 1934); United States v. Davis, 437 F.2d 928 (7th Cir. 1971). We have also held that the Trial Court has wide discretion with respect to the order of proof and of permitting a party to re-open his case after he has rested. United States v. Moehring, 446 F.2d 516 (10th Cir. 1971); United States v. Keine, 424 F.2d 39 (10th Cir. 1970), cert. denied 400 U.S. 840, 91 S.Ct. 81, 27 L.Ed.2d 75 (1970); Massey v. United States, 358 F.2d 782 (10th Cir. 1966), cert. denied 385 U.S. 878, 87 S.Ct. 159, 17 L.Ed.2d 105 (1966). In the same vein, we have held that it is within the discretion of the Trial Court: (1) to allow a witness to testify as to conclusions [United States v. Wheeler, 444 F.2d 385 (10th Cir. 1971)]; (2) to participate in the trial by asking questions of witnesses in order to ascertain facts, even to the extent of asking leading questions [United States v. Wheeler, supra; McBride v. United States, 409 F.2d 1046 (10th Cir. 1969), cert. denied 396 U.S. 938, 90 S.Ct. 282, 24 L.Ed.2d 240 (1969)] ; and (3) to comment on the evidence, carefully avoiding any infringement on the jury’s exclusive right to determine issues of fact [Lowther v. United States, 455 F.2d 657 (10th Cir. 1972), cert. denied Lowry v. United States, 409 U.S. 857, 93 S.Ct. 114, 34 L.Ed.2d 102 (1972); Massey v. United States, supra; Ayash v. United States, 352 F.2d 1009 (10th Cir. 1965)].

Thus, the touchstone for our determination is whether the record evidences prejudice to the appellants by reason of the jury’s view of the blackboard chart. We hold that nothing contained on the blackboard chart could have prejudicially influenced the jurors’ verdicts, in light of the careful and detailed cautionary instructions given by the Trial Court that it was not evidence and contained information relating only, in part, to the Government’s theory of the case which must be proved beyond a reasonable doubt in order to have evidentiary value. The record evidences, and the jury verdicts confirm, that the Government did prove, beyond a reasonable doubt, all of the matters contained on the blackboard.

We have held that it is within the discretion of the Trial Court, absent abuse working to the clear prejudice of the defendant, to permit the display of demonstrative or illustrative exhibits admitted in evidence both in the courtroom during trial and in the jury room during deliberations. Taylor v. Reo Motors, Inc., 275 F.2d 699 (10th Cir. 1960); Ahern v. Webb, 268 F.2d 45 (10th Cir. 1959); Millers’ National Insurance Company, Chicago, Illinois v. Wichita Flour Mills Company, 257 F.2d 93 (10th Cir. 1958); Carlson v. United States, 187 F.2d 366 (10th Cir. 1951). In Taylor, supra, the jury was permitted to take to the jury room during deliberations a heat exchanger where certain jurors dismantled and reassembled it to demonstrate or test the truth of statements made concerning its functioning. In Ahem, supra, certain photocopies of hospital records of the plaintiff-patient were admitted in evidence with sole limitation that these records were not to be used for statements of other doctors that might be mentioned in them. These records were not permitted to go to the jury room after it had commenced its deliberations. We reiterated the rule that the decision as to whether exhibits should be sent to the jury room rests within the sound discretion of the Trial Court. In Millers’ National Insurance Company, supra, we held that the Trial Court did not err in permitting moving pictures of experiments conducted by plaintiff’s witnesses to be exhibited to the jury in view of the fact that such pictures were presented to show principles, as testified to by an expert witness, and not to show what actually occurred, and jury was so instructed. In Carlson, supra, we held that the Court did not err in admitting exhibits which were compilations of figures gathered from a variety of other exhibits in evidence, which reduced the figures to concise form. We there observed that the data shown on the exhibits was contained in other exhibits in evidence, and that reducing it to a simpler form aided the jury and did not prejudice the rights of appellants. To the same effect, we hold that the submission of papers, documents or articles, whether or not admitted in evidence, to the jury for view during trial or jury deliberations, accompanied by careful cautionary instructions as to their use and limited significance, is within the discretion accorded the Trial Court in order that it may guide and assist the jury in understanding and judging the factual controversy. Shane v. Warner Mfg. Corp., 229 F.2d 207 (3rd Cir. 1956), dismissed, 351 U.S. 959, 76 S.Ct. 860, 100 L.Ed. 1481 (1956); Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395, 68 A.L.R.2d 761; 5B C.J.S. Appeal and Error § 1782; 89 C.J.S. Trial § 467.

The appellants have alleged prejudice, but they have failed to convinee us of its existence by cogent argument. They would have us rely upon bare conjecture of prejudice in order to convert the blackboard’s use in the courtroom and during the j ury deliberation into plain error. This court will not usurp the Trial Court’s discretion absent a clear showing of abuse and resulting prejudice. United States v. Brumley, 466 F.2d 911 (10th Cir. 1972), cert. denied 412 U.S. 929, 93 S.Ct. 2755, 37 L.Ed.2d 156 (1973); United States v. Kienlen, 415 F.2d 557 (10th Cir. 1969). No such abuse and prejudice has been shown.

III.

Appellants contend that the Trial Court erred in giving Instruction Number 30, in that it was inconsistent with the appellants’ right to be proved guilty beyond a reasonable doubt.

The instruction complained of and given by the Court reads:

There is nothing peculiarly different in the way a jury is to consider the proof in a criminal case from that in which all reasonable persons treat any question depending upon evidence presented to them. You are expected to use your good sense; consider the evidence for only those purposes for which it has been admitted, and give it a reasonable and fair construction in the light of your common knowledge of the natural tendencies and inclinations of human beings.

Appellants argue that while the instruction is similar to that contained in 1 Devitt and. Blackmar, Federal Jury Practice and Instructions § 17.06 (2nd Ed. 1970), the Trial Court omitted the language, “If the accused be proved guilty beyond reasonable doubt say so. If not so proved guilty, say so.”, and the further phrase, “. . . . and remember as well that the law never impoes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.” Accordingly, appellants urge that the instruction, as given, intruded upon their right to be proved guilty beyond a reasonable doubt.

Appellants acknowledge that the Court did not omit any material instruction. Instead, they seem to contend that because of the order in which the Court submitted the instructions, that the jury likely associated the “burden of proof beyond a reasonable doubt” instruction only with the definitions of the crimes involved, and to the areas of credibility and inferences.

We have carefully reviewed each of the instructions given by the Court. They were well considered, comprehensive and clear. The Court made it abundantly clear that the prosecution’s burden of proof beyond a reasonable doubt applied to each and every essential element of the offenses charged. The Court made repeated references to the Government’s obligation to prove the appellants’ guilt beyond a reasonable doubt, including one specific instruction defining those terms.

The trial was lengthy. It involved a great deal of evidence. The jury’s individualized verdicts, we believe, demonstrate that it had no difficulty following the Court’s instructions and applying them on an individual basis to Downen and Smith. We hold that instructions fairly and adequately guided the jurors in their deliberations.

The challenged instruction, when considered in context with all of the instructions given, and the closing remarks of the Trial Court, show that the jurors were not misled and that no error was committed. The instructions were ringed with charges that the burden of proof is upon the Government to establish each of the essential elements of each of the offenses charged. Just as we observed in United States v. Smaldone, 484 F.2d 311 (10th Cir. 1973), it is impossible to conceive a jury shifting the burden of proof or being misled as to the necessity for the Government to prove specific intent beyond all reasonable doubt. See also United States v. Woodring, 464 F.2d 1248 (10th Cir. 1972); United States v. Tijerina, 407 F.2d 349 (10th Cir. 1969), cert. denied 396 U.S. 843, 90 S.Ct. 76, 24 L.Ed.2d 93 (1969); Troutman v. United States, 100 F.2d 628 (10th Cir. 1938); Tingley v. United States, 34 F.2d 1 (10th Cir. 1929).

Affirmed.


source: Caselaw Access Project

author: PHILLIPS, Chief Judge.

license: Public Domain

text:
    Monte R. BLAIR, Plaintiff-Appellee, v. BOARD OF REGENTS OF the STATE UNIVERSITY AND COMMUNTY COLLEGE SYSTEM OF TENNESSEE et al., Defendants-Appellants.
    No. 73-1984.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 11, 1974.
    Decided May 3, 1974.

      W. Henry Haile, Asst. Atty. Gen., State of Tennessee, Nashville, Tenn., on brief, David M. Pack, Atty. Gen., of counsel, for defendants-appellants.
    Irvin M. Salky, Elijah Noel, Jr., Ratner, Sugarmon & Lucas, Memphis, Tenn., on brief, for plaintiff-appellee.
    Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and CONTIE, District Judge.

       Honorable Leroy J. Contie, Jr., Judge, United States District Court for the Northern District of Ohio, sitting by designation.

   PHILLIPS, Chief Judge.

Monte R. Blair was a non-tenured professor at Memphis State University. His contract was not renewed at the end of his fifth year as a member of the faculty. He filed this action pursuant to 42 U.S.C. § 1983, contending that the method followed by the University in not renewing his contract and in not granting him tenure violated the minimum requirements of the Due Process Clause of the Fourteenth Amendment. The District Court held that appellee had been deprived of the minimum standards of due process and ordered that he be reinstated as a non-tenured professor until he has been afforded a due process hearing as prescribed in the memorandum opinion of that court.

We reverse on authority of Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Orr v. Trinter, 444 F.2d 128 (6th Cir. 1971), cert. denied, 408 U.S. 943, 92 S.Ct. 2847, 33 L.Ed.2d 767 (1972).

In Orr this court recognized that a due process hearing must be accorded to a non-tenured teacher if his contract is not renewed because he had exercised his rights of free speech as guaranteed by the First Amendment; or if the non-renewal is in violation of the Self-Incrimination Clause of the Fifth Amendment, the Due Process Clause of the Fifth or Fourteenth Amendments, or the Equal Protection Clause of the Fourteenth Amendment. All of these we declared to be constitutionally impermissible reasons for refusal to rehire a teacher. 444 F.2d at 134. In the present case the reason for non-renewal, given in writing to the University’s Vice-President for Academic Affairs, by the Chairman of Blair’s department, was that “I believe his professional relationships with individual students frequently fail to meet minimum standards.”

In Orr we pointed out that the reason for the probationary period required prior to tenure is to give the school authorities “a chance to evaluate the teacher without making a commitment to rehire him.” 444 F.2d at 135. See also Hetrick v. Martin, 480 F.2d 705 (6th Cir. 1973); Patrone v. Howland Local Schools Board of Education, 472 F.2d 159 (6th Cir. 1972); George v. Conneaut Board of Education, 472 F.2d 132 (6th Cir. 1972); Lipp v. Board of Education, 470 F.2d 802 (7th Cir. 1972); Lukac v. Acocks, 466 F.2d 577 (6th Cir. 1972); Crabtree v. Brennan, 466 F.2d 480 (6th Cir. 1972); Harp v. Clemens, 464 F.2d 1028 (6th Cir. 1972); Miller v. Board of Education, 452 F.2d 894 (6th Cir. 1971).

In the present case the District Court found that “Dr. Blair had no expectancy of continued employment;” that a hearing was conducted before a committee of tenured professors on September 22, 1972; and that the University Committee on Academic Freedom and Responsibility conducted a hearing on February 2, 1973, reaching the conclusion that the procedure followed by the University’s Vice-President for Academic Affairs had been proper. It appears that the University followed the procedures suggested by the American Association of University Professors in the “Statement on Procedural Standards in the Renewal or Nonrenewal of Faculty Appointments,” A.A.U.P. Bulletin, Summer 1971, which is a part of the record on this appeal.

The District Court nevertheless found that, under the rationale of Roth, appellee was deprived of a “liberty” interest under the Fourteenth Amendment, in that the non-renewal of his contract, on the charge of failure to meet minimum standards in his professional relationships with individual students, seriously damaged his reputation or imposed on him a stigma that foreclosed his freedom to take advantage of other employment opportunities. We do not construe Roth to support this conclusion. It can be argued that the failure of any school system to renew the contract of any teacher on grounds of failure to meet minimum standards in his relationships with students may injure the reputation of the teacher in the academic community. We do not read Roth to mean that this situation requires a hearing under the Due Process Clause.

The decision of the District Court is reversed and the case is remanded with directions to dismiss the complaint.


author: COFFIN, Chief Judge.

text:
    UNITED STATES of America ex rel. Gerard A. BAILEY, Petitioner, Appellant, v. U. S. COMMANDING OFFICER OF the OFFICE OF the PROVOST MARSHAL, U. S. ARMY, etc., Respondent, Appellee.
    No. 74-1023.
    United States Court of Appeals, First Circuit.
    Heard April 2, 1974.
    Decided May 15, 1974.

      Mel L. Greenberg, Worcester, Mass., with whom Teshoian, Greenberg & Drapos, Worcester, Mass., was on brief, for petitioner, appellant.
    Robert B. Collings, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief, for respondent, appellee.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

This petition for a writ of habeas corpus, seeking injunctive and declaratory relief from a specific Army regulation, the merits of which are irrelevant here, was filed the day after petitioner, who had been absent without authorization from the Army, entered military custody. While the present petition was pending in the district court, petitioner again absented himself without proper leave. The government filed a motion to dismiss, which was withdrawn when petitioner voluntarily returned to military custody. However, petitioner remained in custody for only one day, and thereafter again absented himself without leave. The government again filed a motion to dismiss. The district court, finding itself with . no jurisdiction, granted the government’s motion.

The game of hide-and-seek continues. The government contends that it has no military facilities within the jurisdiction for confining petitioner, if and when he again returns to' custody. Since he is not presently in custody, the government urges us to affirm the district court’s dismissal of the petition. Petitioner is unwilling to return to custody unless the government places him on excess leave status, which the government is not willing to do. Petitioner contends, however, that he is “in custody” for the purpose of invoking the writ of habeas corpus.

28 U.S.C. § 2241(c) provides that “[t]he writ of habeas corpus shall not extend to a prisoner unless (3) [h]e is in custody in violation of the Constitution or laws or treaties of the United States.”

Although “habeas corpus is an extraordinary remedy” whose “use has been limited to a special urgency”, and whose custody requirement “is designed to preserve the writ . . . as a remedy for severe restraints on individual liberty”, Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 1574, 36 L.Ed.2d 294 (1973), the Supreme Court has found “custody” sufficient to invoke the use of the writ when a petitioner’s freedom of movement lay within the discretion of the government, as when a petitioner is on parole, Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1962), awaiting trial on bail, Hensley, supra, or on military reserve status, Strait v. Laird, 406 U.S. 341, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972). Moreover, jurisdiction will attach if the petitioner is “in custody” at the time of filing, Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), although subsequently released from confinement before trial. See Marchand v. Director, U. S. Probation Office, 421 F.2d 331 (1st Cir. 1970) . Since the petition in the present case was filed when petitioner was in military custody to the extent that — although escape proved rather easy — his freedom of movement lay within the discretion of the government, it seems clear that jurisdiction attached. Meck v. Commanding Officer, Valley Forge Gen. Hosp., 452 F.2d 758 (3d Cir. 1971).

This does not exhaust the inquiry. It is possible that the case is moot. So held the court in Ragsdale v. Cameron, 117 U.S.App.D.C. 278, 329 F.2d 233 (1963), when a habeas petitioner seeking release from a mental hospital escaped. So speculated the court in United States ex rel. Rudick v. Laird, 412 F.2d 16, 21 (2d Cir. 1969), when it said, “[I]t is doubtful whether a soldier who is absent without leave can be characterized as within the custody of any officer of the Armed Forces . . . .” It is true that in Carafas, supra, the Court held that the petition was not mooted by petitioner’s release from confinement, since petitioner still had to endure the “collateral consequences” stemming from his custody, such as its effect upon his career and reputation. See also Matthews v. State of Florida, 463 F.2d 679 (5th Cir. 1972). Similarly, in Bratcher v. McNamara, 448 F.2d 222 (9th Cir. 1971) , the court held that a potential recall to active duty presented an “adverse collateral consequence” sufficient to avoid mootness. It could be argued that the threat of arrest and return to custody might qualify as “adverse collateral consequences”. But we confess that we have conceptual difficulty in equating the consequences flowing from the illegal status which petitioner voluntarily entered with those of traditional custody where an individual is involuntarily but legally subject to restrictions on his liberty.

We need not, however, rule definitively on this issue for there is an equally compelling, if more rarely encountered, ground for affirmance. It is that petitioner has brought upon himself by his Janus-like conduct in seeking to invoke the processes of the law while flouting them a disentitlement “to call upon the resources of the Court for determination of his claims.” Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970); Allen v. Georgia, 166 U.S. 138, 141, 17 S.Ct. 525, 41 L.Ed. 949 (1897); United States v. Shelton, 482 F.2d 848, 849 (5th Cir. 1973); cf. Emma v. Armstrong, 473 F.2d 656, 658 (1st Cir. 1973), cert. denied, 414 U.S. 870, 94 S.Ct. 87, 38 L.Ed.2d 88, (1973); United States v. Tremont, 438 F.2d 1202 (1st Cir. 1971).

Affirmed.


author: PER CURIAM.

text:
    The BURBRIDGE FOUNDATION, INC., Appellant, v. REINHOLDT & GARDNER et al., Appellees.
    No. 73-1792.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 14, 1974.
    Decided May 15, 1974.

      Robert E. Hornberger, Fort Smith, Ark., for appellant.
    G. Alan Wooten, Harper, Young & Smith, Fort Smith, Ark., for appellees.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and ROSS, Circuit Judges.
   PER CURIAM.

Upon registry of a personal judgment arising from a divorce decree, Velma Jean Holloway, formerly Velma Jean Burbridge, obtained a writ of garnishment from the Chancery Court of Sebastian County, Arkansas, against Reinholdt & Gardner, a stock brokerage firm, to attach any stocks belonging to her former husband, R. O. Burbridge. The brokerage firm denied holding any stock in Burbridge’s name, but admitted it had an account in the name of The Burbridge Foundation. The Burbridge Foundation intervened in the state court proceedings. Shortly thereafter, The Foundation brought suit in the federal district court against Reinholdt & Gardner, seeking recovery of the stocks. In its complaint, The Foundation made the same allegations it raised as intervenor in state court, i. e., that the stocks belonged to it and not R. O. Burbridge personally. In addition The Foundation for the first time asserted that the Arkansas garnishment statute was unconstitutional in that it sought to deprive The Foundation of its property without due process of law. Reinholdt & Gardner answered that it could not relinquish the stocks until ordered to do so by a court of competent jurisdiction. The Holloways intervened in the federal action and moved to dismiss for lack of subject matter jurisdiction. The district court sustained the motion to dismiss. The Burbridge Foundation appeals.

The present suit is basically an action in rem seeking relinquishment of certain stocks held by the stakeholders, Reinholdt & Gardner. The Foundation’s memorandum in the trial court stated that “the relief specifically sought is the return and delivery to The Burbridge Foundation of its stock deposited with that defendant [Reinholdt & Gardner].” The rule is well settled that the court, state or federal, which first acquires jurisdiction in a proceeding in rem retains jurisdiction to the exclusion of the other until final adjudieation. Princess Lida v. Thompson, 305 U.S. 456, 59 S.Ct. 275, 83 L.Ed. 285 (1939); United States v. Bank of New York & Trust Co., 296 U.S. 463, 56 S.Ct. 343, 80 L.Ed. 331 (1936); cf. Lynch v. Porter, 446 F.2d 225, 229 (8th Cir. 1971), cert. denied, 404 U.S. 1047, 92 S. Ct. 711, 30 L.Ed.2d 739 (1972). Here the Arkansas Chancery Court was first to acquire jurisdiction of the res. Although the federal constitutional question was not originally raised in the state court, the decision in the state court as to the lawful ownership of the stock may obviate the necessity of passing on the constitutional issue (if in fact one remains, see note 1 supra,). Therefore, we hold that the district court properly rejected the suit on jurisdictional grounds.

The federal district court’s discussion of the constitutional question, as further support for its decision to dismiss, is without any binding effect on the parties. Once the court determined that it lacked jurisdiction, it was precluded from proceeding any further. See Kansas-Nebraska Natural Gas Co. v. St. Edward, 234 F.2d 436, 441 (8th Cir. 1956).

The judgment of dismissal for lack of jurisdiction is affirmed.

      . On Dec. 17, 1973, after the district court’s decision, the Arkansas Supreme Court held provisions of Ark.Stat.Ann. § 31-501 (Repl. 1962) unconstitutional as authorizing prejudgment garnishment without notice. G.A. C. Trans-World Acceptance Corp. v. Jaynes Enterprises, Inc., 502 S.W.2d 651 (Ark. 1973). The applicability of this decision is denied by the present appellees.

      . Russell B. Holloway was the divorce attorney for Velma Jean Burbridge (now Holloway) and was awarded $12,000 in attorney’s fees. He was also a party to the state garnishment suit.


author: ZAMPANO, District Judge:

text:
    James C. SCHUM, Appellant, v. SOUTH BUFFALO RAILWAY CO., Appellee.
    No. 457, Docket 73-2276.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 18, 1974.
    Decided April 25, 1974.

      Grover R. James, Jr., Buffalo, N. Y. (Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo, N. Y., on the brief), for appellee.
    Lauren D. Rachlin, Buffalo, N. Y. (Rachlin & Rachlin, Buffalo, N. Y., on the brief), for appellant.
    Before FRIENDLY and MANSFIELD, Circuit Judges, and ZAMPANO, District Judge.

       Of the United States District Court, District of Connecticut, sitting by designation.

   ZAMPANO, District Judge:

James C. Schum, a former employee of the South Buffalo Railway Company, instituted this suit with a complaint alleging four causes of action, one based upon wrongful discharge by the railroad in violation of the collective bargaining agreement between the union and the company, and the remaining three counts against the union and its General Chairman for breach of their duty of fair representation. The district court granted the railroad’s motion for summary judgment on the ground Schum was barred from recovery because he failed to exhaust the remedies available to him under the collective bargaining contract. In so doing, the court rejected Sehum’s contention that this failure was excused by his reliance upon the union to process his grievance within the timetable established in the labor agreement. We reverse and remand.

The facts may be briefly stated. On March 11, 1966, Schum, a longtime employee of the railroad, received personal injuries during the course of his employment. Although he attempted to return to work in September and October of 1966, company doctors were unable to certify that he was physically able to resume his employment. Thereafter a dispute arose between Schum and the company’s representatives concerning his ability to perform his regular duties and, on March 23, 1967, he was ordered to report for another physical examination on March 27, 1967. When Schum’s request for a postponement was denied, he refused to appear. The following day he received a notice that a disciplinary hearing would be held on April 3, 1967. Schum informed the railroad that his lawyer would be unavailable on that date and asked that the hearing be adjourned one week. The request was denied and Schum was subsequenty discharged for insubordination. On April 23, Schum wrote a letter to the national 'headquarters of his union in Cleveland seeking advice and assistance. Within a few days, General Chairman Dolan of the local met with Schum and agreed to process his grievance through the administrative appellate procedures set forth in the bargaining agreement.

Essentially the contract creates two administrative levels for the handling of grievances. The first step allows either the aggrieved employee or the union’s representative to present the grievance to a high ranking company official for consideration. If the claim is disallowed, an appeal must be filed within six months by the employee or the union with the National Railroad Adjustment Board. If a timely appeal is not instituted, the claim is barred and the company’s decision becomes “final and binding.” The contract further provides “that the parties may by agreement in any particular case extend the 6 months’ period herein referred to.”

General Chairman Dolan completed the first step of the grievance procedure on May 9, 1967, by requesting that the company reconsider its decision to terminate Schum’s employment. On May 17, 1967, the railroad affirmed the discharge. In the following months, there was further correspondence between the railroad and the union with respect to Schum’s case, but the union made no effort to carry a timely claim to the second step of the grievance procedure. On November 15, 1967, the union unsuccessfully attempted to obtain the company’s consent to an extension of the six-month limitations period in order to process Schum’s appeal to the Board. It was not until Dolan was replaced as General Chairman in early 1968 that Schum claims he first learned, much to his chagrin, that the time period to appeal had elapsed and that the union had failed to take appropriate action to preserve his grievance for a hearing before the Board. Unable to pursue further the administrative remedies, Schum commenced the instant action for reinstatement and damages.

In Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), an action commenced under the provisions of the Labor Management Relations Act, 29 U.S.C. § 141 et seq., Maddox sued his employer for severance pay allegedly due him under the terms of the collective bargaining agreement between his employer and his union. Although the contract provided for a three-step grievance procedure followed by binding arbitration, Maddox made no effort to seek arbitration. The Supreme Court held that the contractually created grievance procedures were exclusive and that Maddox was required to attempt to exhaust these procedures before instituting a court suit against the company. Left open by the Court was the question concerning the nature and form of the remedy available to an employee whose union refused to press his claim or presented it with little interest or care.

This undecided issue was squarely answered in the landmark case, Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L. E.2d 842 (1967), wherein the Supreme Court stated that in an action against his employer for wrongful discharge an employee will be excused from the exhaustion-of-remedies requirement upon a showing that the union breached its duty of fair representation in processing his claim. Id. at 186. While not defining precisely the duty of fair representation, the Court noted that “a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion. . . .” Id. at 191. The Court further acknowledged that the employee may sue the employer and the union in separate actions or may join both parties as defendants in the same lawsuit. Id. at 197.

Many of the principles enunciated in Maddox and Vaca have been applied to actions commenced by railroad employees pursuant to the provisions of the Railway Labor Act, 45 U.S.C. § 151 et seq. While it is true that a railroad employee generally must exhaust the administrative remedies set forth in the Act and the labor contract before seeking a judicial determination of his grievance, see Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972), there are exceptions. In Glover v. St. Louis—S. F. R. Co., 393 U.S. 324, 329-331, 89 S.Ct. 548, 21 L.Ed.2d 519-(1969), the Supreme Court recognized three situations in which suit could be instituted by a railroad employee despite his failure to exhaust fully his contractual remedies: (1) when the employer repudiates the private grievance machinery; (2) if the union breaches its duty of fair representation; or (3) where the administrative remedies would be wholly futile. See also Griffin v. International U., United Automobile, A. & A. I. W., 469 F.2d 181, 183 (4 Cir. 1972); Nemitz v. Norfolk and Western Railway Company, 436 F. 2d 841, 849-850 (6 Cir. 1971).

Thus, construing the complaint and moving papers liberally,, Czosek v. O’Mara, 397 U.S. 25, 27, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970), and accepting Schum’s factual allegations as true, as we must, Gore v. Northeast Airlines, Inc., 373 F.2d 717, 726 (2 Cir. 1967), it seems clear that Maddox, Vaca, and Glover provide ample legal bases upon which Schum would have viable causes of action against both his union and his employer.

The appellee railroad, however, seeks to distingush these authorities on the ground that the Vaca exception to the exhaustion requirement applies only if the union has the sole power under the labor contract to activate the various steps in the grievance procedure. Schum, unlike the employee in Vaca, technically had the right to process the appeal on his own through the higher appellate stages of the grievance machinery, but under the circumstances of this case we do not believe this distinction is sufficiently meaningful to justify the dismissal of the suit.

Schum was seeking to protect one of his most basic rights in the employee-employer relationship — the right not to be wrongfully discharged. As a general rule, grievances do not succeed without the full support of the union. Normally employees do not have the expertise, knowledge or experience to interpret the complicated substantive and procedural provisions of a collective bargaining agreement. In addition, specialized skill and insight are required at the higher levels of the grievance procedures to investigate and marshall the relevant facts and law, to prepare adequate petitions and briefs, to comply with the intricate limitations periods common to all labor contracts, and to present persuasive arguments to the board of arbitration.

Here Schum properly invoked the union’s power, aid and prestige to obtain the benefits of union representation in his protest against the wrongful discharge. Reassured on several occasions by union officials that his grievance would be processed administratively, Schum understandably left the matter in the hands of the union. He did not learn of the union’s lack of diligence until months after he had lost the right to resort to the contractually-prescribed procedures on his own. Under these circumstance's, Schum cannot be denied his day in court against his employer because his union failed to provide him fair representation. As stated by the Supreme Court in Vaca,:

It is true that the employer in such a situation may have done nothing to prevent exhaustion of the exclusive contractual remedies to which he agreed in the collective bargaining agreement. But the employer has committed a wrongful discharge in breach of that agreement, a breach which could be remedied through the grievance process to the employee-plaintiff’s benefit were it not for the union’s breach of its statutory duty of fair representation to the employee. To leave the employee remediless in such circumstances would, in our opinion, be a great injustice. We cannot believe that Congress, in conferring upon employers and unions the power to establish exclusive grievance procedures intended to confer upon unions such unlimited discretion to deprive injured employees of all remedies for breach of contract. Nor do we think that Congress intended to shield employers from the natural consequences of their breaches of bargaining agreements by wrongful union conduct in the enforcement of such .agreements. 386 U.S. 185-186.

We hold, therefore, that if Schum’s allegations are correct, he made a good faith “attempt” to exhaust his contract remedies within the meaning of Maddox. Thus, if the district court finds on remand that Schum reasonably relied on his union to prosecute his grievance, the railroad’s defense of nonexhaustion would not bar his wrongful discharge suit.

The result reached here finds support in several leading authorities. In Retana v. Apartment, Motel, Hotel & El. Op. U., Loc. No. 14, 453 F.2d 1018 (9 Cir. 1972), the plaintiff repeatedly urged the union to protest her discharge. When the union refused, she sued her employer for wrongful discharge and the union for breach of its duty of fair representation. The district court ruled that Maddox barred the suit. The Ninth Circuit reversed, concluding that even if the plaintiff personally had the right to initiate her claim through the grievance machinery, nonexhaustion was excused by the union’s failure to act “without rational justification” and by the union’s failure “to advise [her] of her contract rights.” Id. at 1027. Similarly, in Nemitz v. Norfolk and Western Railway Company, supra, where the plaintiffs unsuccessfully petitioned their union to prosecute their grievances administratively, the court held judicial intervention was proper because the plaintiffs had reached a “dead-end street” in their attempt to utilize contractual remedies. See also De Arroyo v. Sindicato De Trabajadores Packing, AFL-CIO, 425 F.2d 281, 283 (1 Cir. 1970) (“exhaustion of contract” barrier overcome by proof of the union’s breach of its duty of fair representation or by “some other valid reason why the contractual remedies could be disregarded”).

Reversed and remanded.

      . This appeal was decided after appropriate certification, pursuant to Rule 54(b), F.R. Civ.P., that there was no just reason for delay.

      . 45 U.S.C. § 153 First (i) authorizes reference to the Adjustment Board of disputes “between an employee . . . and a carrier . . . growing out of grievances . ” Section 153 First (j) provides that “[pjarties may be heard either in person, by counsel, or by other representatives as they may respectively elect. . . . ”

      . In pertinent part, Rule 36 of the Labor Agreement states:
      (a) All claims or grievances must be presented in writing by or on behalf of the Employees involved to the officer designated by the Company as its highest officer to handle claims and grievances within 30 days from the date of the occurrence on which the claim or grievance is based. Should any such claim or grievance be disallowed, the Company shall, within 30 days from the date it is filed, notify the Employee or his representative of the reasons for such disallowance. If not so notified, the claim or grievance shall be considered valid and settled accordingly, but this shall not be considered as a precedent or waiver of the contentions of the Company as to other similar claims or grievances.
      (b) Decision by the highest officer designated by the Company to handle claims and grievances shall be final and binding unless within 30 days after written -notice of his decision he is notified in writing that his decision is not accepted. All claims or grievances involved in a decision of the highest officer shall be barred unless within 6 months from the date of his decision proceedings are instituted by the Employee or his duly authorized representative before a tribunal having jurisdiction pursuant to law or agreement of the claim or grievance involved. It is understood, however, that the parties may by agreement in any particular case extend the 6 months’ period herein referred to.
      # # # sfc

      . The appellee railroad contends that certain admissions made by Schum in his deposition cast “substantial doubt” on his claims of reliance on the union and lack of knowledge of the applicable limitations period for appeal in the labor contract. However, these arguments founder on the well established rule that no genuine issues of fact may be resolved on a motion for summary judgment. Rule 56(c), F.R.Civ.P.; cf. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Suissa v. American Export Lines, Inc., 367 F.Supp. 1113, 1114 (S. D.N.Y.1973).

      . We do not read O’Mara v. Erie Lackawanna Railroad Company, 407 F.2d 674 (2 Cir. 1969), aff’d sub nom. Czosek v. O’Mara, 397 U.S. 25 (1970) to compel a contrary holding. There it appeared that the plaintiffs were fully cognizant of their right to proceed on their own through the grievance machinery and the union had refused to process their grievance. Moreover, there was no allegation that the union’s breach of its duty of fair representation was the operative cause of the plaintiffs’ failure to exhaust contractual remedies. These factual distinctions markedly distinguish O’Mara from the case at bar. Cf. Desrosiers v. American Cyanamid Company, 377 F.2d 864 (2 Cir. 1967) on remand, 299 F.Supp. 162 (D. Conn.1969).