author: OAKES, Circuit Judge. HAYS, Circuit Judge

text:
    414 THEATER CORP., Appellee, v. Patrick MURPHY, Individually and as Police Commissioner of the City of New York, Bess Myerson, Individually and as Commissioner of the Department of Consumer Affairs of the City of New York, Appellants.
    No. 641, Docket 73-2327.
    United States Court of Appeals, Second Circuit.
    Argued March 4, 1974.
    Decided May 17, 1974.

      Jesse J. Fine, New York City (Norman Redlich, Corp. Counsel of the City of New York, New York City, Stanley Buchsbaum, Renee Modry, New York City, of counsel), for appellants.
    Herbert S. Kassner, New York City, (Kassner & Detsky, New York City), for appellee.
    Before LUMBARD, HAYS and OAKES, Circuit Judges.
   OAKES, Circuit Judge.

Defendants appeal from the grant by Judge Lasker below of a preliminary injunction proscribing the enforcement against plaintiff of Article 1 of Title B, Chapter 32 of the Administrative Code of the City of New York (article l). 414 Theatre Corp. v. Murphy, 360 F.Supp. 34 (S.D.N.Y.1973). Appellee brought its action below under 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3), alleging that article 1 is unconstitutional on its face and as applied to activity carried on by appellee, activity alleged to be protected by the first amendment. Appellee sought a declaratory judgment of unconstitutionality under 28 U.S.C. § 2201, as well as preliminary and permanent injunctive relief.

Appellee, the operator of an establishment containing coin-operated film machines, first applied to Judge Lasker for preliminary injunctive relief against the enforcement of article 1 in January of 1973. At that time, Judge Lasker “denied the application without prejudice to renewal in order to permit the matter to be litigated in the state courts.” Id. at 35. He did so “in the spirit of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and United States ex rel. Goodman v. Kehl, 456 F.2d 863 (2d Cir. 1972) with full awareness that denial was not mandated . since no criminal or civil cases involving 414 were pending in the state courts ...” Id.

The issues being litigated in the state courts also concerned the constitutionality of article 1. This litigation arose in two contexts. Under § B32-21.0 of article 1, violations of the article are punishable criminally by a fine of up to $500 and imprisonment for not more than six months. The uncontradicted affidavit of appellee below (supported by the facts as found in a case decided by the New York City Criminal Court to be discussed below) indicates that the appellants initiated a series of criminal prosecutions under this section early in 1972, some five years after the introduction of coin-operated movies into New York City. Only then was the operation of these “peep shows” in various types of non-amusement businesses in the mid-Manhattan area, typically in paperback book stores, determined by appellants to be within the reach of the licensing provisions of article 1, five years after the Department of Licenses had already ruled that licenses were not required for such premises. See 1487 Amusement Corp. v. Redlich, 350 F.Supp. 822, 824 (S.D.N.Y.1972).

On the civil side, appellants sought and obtained New York Supreme Court injunctions, the first being issued on July 3, 1972, against various peep show operators; the injunctions required the operators to obtain licenses within 30 days or rid themselves of their coin-operated film machines. Failure to comply would, of course, lead to these operators being held in contempt of court, in addition to the other criminal and civil sanctions to which they had been or could be subjected. It was apparently the litigation involving these injunctions, presenting as it did the opportunity for presentation and decision of the constitutionality of article 1, that caused Judge Lasker to stay his hand initially.

On February 26, 1973, the appeal from one injunction against peep show operators in the State Supreme Court was decided, City of New York v. S & H Book Shop, Inc., 41 A.D.2d 637, 341 N.Y.S.2d 292 (1973), and resulted in reversal of the injunction. The Appellate Division avoided decision on constitutional grounds, finding instead that the City of New York had not demonstrated “a clear right to the drastic remedy of a temporary injunction . ” Id., 341 N.Y.S.2d at 293. The Appellate, Division indicated that a “clear” right had not been demonstrated apparently because of the lack of probability that the City would prevail on the merits of the action, stating that

On its face, the New-York City Administrative Code, § B 32-1.0 appears to vest unbridled discretion in the Commissioner to define and determine the standards for granting a license. There is thus presented, a serious question to the constitutionality of the licensing provision which plaintiffs seek to enforce ....

Id., 341 N.Y.S.2d at 293.

After this decision was handed down, appellee reapplied to Judge Lasker for preliminary injunctive relief. In granting that relief by decision dated June 28, 1973, and order dated July 11, 1973, Judge Lasker stated his belief that “this application is now ripe for determination” since “[t]he state courts have had ample opportunity to consider the question in related cases and have declined to do so.” 360 F.Supp. at 36. This statement, viewed as a decision to proceed rather than abstain, was, we think, correct. The question of abstention is, of course, “entirely separate from the question of granting declaratory or injunctive relief.” Lake Carriers’ Association v. MacMullan, 406 U.S. 498, 509 n.13, 92 S.Ct. 1749, 1756, 32 L.Ed.2d 257 (1972). See Steffel v. Thompson, 415 U.S. 452, 474 n. 21, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Where the state court has deliberately avoided an interpretation of a statute which might save its constitutionality or moot the federal claim, the abstaining federal court may certainly reassert the jurisdiction it was retaining in order to reach the merits. Neither comity nor sound judicial administration require the abstaining federal court to wait indefinitely for state courts to determine the merits. See NAACP v. Gallion, 368 U.S. 16, 82 S.Ct. 4, 7 L.Ed.2d 85 (1961).

On July 20, 1973, nine days after Judge Lasker entered the order granting the preliminary injunction against enforcement of article 1, the New York City Griminal Court handed down a decision in certain consolidated prosecutions previously brought for violations of article 1. People v. Mitchell, 74 Misc.2d 1053, 346 N.Y.S.2d 495 (N.Y.C.Cr.Ct.1973). The Mitchell court, after hearing argument and adducing evidence respecting article 1 and its enforcement, dismissed the complaints by holding

that Sections B32-1.0 and B32-4.0 . . . are unconstitutional on their face in that they subject the exercise of freedoms protected by the First Amendment to the prior restraint of a license without narrow, objective and definite standards to guide the licensing authority.

Id. at 1060, 346 N.Y.S.2d at 502 (emphasis added). The Mitchell decision, from a procedural standpoint, was apparently the result of a motion or motions under NYCPL § 170.30(1) (f). As such, that decision was appealable as a matter of right to the Appellate Division of the New York Supreme Court by the City under NYCPL § 460.10, subd. 1(a) & (c), which requires filing of a motion of appeal within 30 days. Remarkably in view of the appellants’ position before us, no appeal from this decision was ever taken. Thus, one could be led to wonder whether the threat of the ordinance is not of' more concern to the City than the validity.

To recapitulate, as of July 20, 1973, appellants had been denied injunctive relief to enforce civilly article 1 by the Appellate Division in a decision casting “serious” doubt on the constitutionality of that provision, a federal district court had granted a preliminary injunction against the enforcement of article 1 by appellants on the ground of probable unconstitutionality, and a City court had ruled, with no appeal taken from its decision, that article 1 was overbroad and therefore unconstitutional on its face.

At this point the initial question we must face is whether the decision in People v. Mitchell, supra, renders the case before us moot, or whether, in other words, any “case or controversy” under Article III can still be said' to exist. It is not sufficient that the case did exist when the action was brought; generally speaking, “The rule in federal cases is that an actual controversy must be extant at all stages of review. . See, e. g., Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); SEC v. Medical Comm. for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972); United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950).” Steffel v. Thompson, 42 U.S.L.W. at 4359 n.10, [94 S.Ct. at 1216]. But the dismissal of a criminal complaint on the basis of the unconstitutionality of the law allegedly violated is, strictly speaking, only a determination of the rights of the defendant who is a party thereto. Nothing precludes the City from bringing other criminal actions under the ordinance already found unconstitutional in one action, although the probable effect of stare decisis will be another dismissal. The City, moreover, might seek to enforce the ordinance through civil enforcement actions rather than criminal actions, something indeed which it has just done. See City of New York v. Bullard, N.Y.L.J., Dec. 3, 1973, at 2, col. 4 (Sup.Ct.); City of New York v. Pink Pussy Cat, Inc., N.Y.L.J., Dec. 3, 1973, at 2, col. 3 (Sup.Ct.); City of New York v. Cohen, N.Y.L.J., Sept. 20, 1973, at 2, col. 2 (Sup.Ct.) Thus, the issue has hardly been mooted.

What remains then is the question of the propriety of preliminary injunctive relief. The court below applied the principal proper test as to preliminary injunctive relief — the demonstration of probable success on the merits and irreparable harm if the relief is not granted. See Gulf & Western Industries, Inc. v. Great Atlantic & Pacific Tea Co., 476 F.2d 687, 692 (2d Cir. 1973). And we must review its conclusions on the basis of whether there has been an abuse of discretion or a clear mistake of law. Exxon Corp. v. City of New York, 480 F.2d 460, 464 (2d Cir. 1973); Dino DeLaurentiis Cinematografica S.p.A. v. D-150, Inc., 366 F.2d 373 (2d Cir. 1966); Wright & Miller, Federal Practice and Procedure, Civil § 2962.

As to the probability of success on the merits, we have no difficulty in affirming the district court. As noted in its decision, 360 F.Supp. at 37, and in the decision of Judge Hertz in People v. Mitchell, supra, the language of the instant ordinance is almost identical to that struck down in Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). There, as here, the total lack of standards governing the issuance, renewal, and revocation of licenses “conferred upon the City Commission virtually unbridled and absolute power.” Id. at 150. The dissemination of material protected by the first amendment cannot be left to the unguided discretion of a city commissioner. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1962); Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958).

As to whether irreparable harm will occur if preliminary relief is not granted, the appellants suggest first that there can be no irreparable harm until appellee has actually been denied a license, for if the license is granted, appellee will suffer no harm. This might be a persuasive argument were it not for the nature of the licensing procedure here involved. Appellee, which has been showing its peep show films during the period when the commissioner held them not subject to the ordinance, must now cease showing the films while the application and licensing process go on. Yet there is no time limit within which the commissioner must act to grant or deny the application. As noted in People v. Mitchell, supra, not one license had been issued by the Department at the time of the injunction order below, and we are aware of none granted since then. Indeed, it is alleged that applications are held up for more than six months. This forced discontinuance of a first amendment right pending a protracted license determination is itself a prior restraint, see Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), and involves irreparable injury to the public’s as well as the appellee’s first amendment rights.

The appellants claim next that appellee is not threatened with imminent prosecution and thus an injunction is not warranted. See Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1942). See also Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971). As to this point, however, we feel bound to accept the district court’s finding of fact that appellants are refraining from enforcing the ordinance against appellee only pending determination of the motion for preliminary relief. In light of the appellants’ multi-faceted and widespread enforcement of this ordinance, and attempted civil and criminal enforcement against peep show operators, we cannot say that it was clearly erroneous to conclude that appellee was threatened with imminent prosecution.

Upon the facts of this case, if the ordinance were enforced against appellee, appellee would be required to choose between continuing without a license in the business of offering its films, thereby subjecting itself and its employees to the threat of criminal and civil prosecution, and removing the film machines from its premises permanently, obviating the need for a license, or temporarily, pending the determination of a license application. The latter possibility —removing the film machines — involves a deprivation of appellee’s and the public’s first amendment rights to show and to view films, and in itself constitutes irreparable injury justifying injunctive relief, because there is no means to make up for the irretrievable loss of that which would have been expressed. Cf. A Quaker Action Group v. Hickel, 137 U.S.App.D.C. 176, 421 F.2d 1111, 1116 (1969). Moreover, the other option — violating the law to exercise one’s constitutional rights and awaiting the sure hand of the law — itself may cause, as it is alleged to cause, irreparable injury both economic (in the form of loss of revenue because customers are fewer and increase in costs due to the difficulty of finding employees willing to risk arrest, prosecution and possible imprisonment) and personal (the freedom to exercise first amendment rights without genuine fear of prosecution). Where other plaintiffs have faced the similar situation of being required to forego constitutionally protected activity in order to avoid arrest, the Supreme Court has found irreparable injury. See Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Hygrade Provision Co., Inc. v. Sherman, 266 U.S. 497, 45 S.Ct. 141, 69 L.Ed. 402 (1925); Terrace v. Thompson, 263 U.S. 197, 214, 216, 44 S.Ct. 15, 68 L.Ed. 255 (1923). So also do we find the position of appellee, “between the Scylla of intentionally flouting [the ordinance] and the Charybdis of foregoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding.” Steffel v. Thompson, 415 U.S. at 462, 94 S.Ct. at 1217, to cause irreparable injury where the result is the stifling of first amendment expression.

Never at a loss, appellants suggest that if prosecution is imminent then there is no irreparable injury so “great and immediate” as to warrant injunctive relief, because adequate protection will be provided by the city or state court proceedings. See Younger v. Harris, 401 U.S. 37, 46, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). . We do not, however, believe —as we shall attempt to demonstrate— that the Younger sextet (see note 6 infra) forecloses preliminary injunctive relief in this case. The recent Supreme Court decision in Steffel v. Thompson, supra reinforces this conclusion that such relief is appropriate here. So does Hogge v. Members of City Council, 482 F.2d 575 (4th Cir. 1973), cert. denied sub nom. Blair v. Joseph, 416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305 (1974) (threat to livelihood in operating massage parlors and to freedom from prosecution “real” and “imminent”; preliminary injunctive relief upheld).

Younger v. Harris, supra, expressly declined to consider what circumstances were required for federal injunctive relief “when there is no prosecution pending in state courts at the time the federal proceeding is begun.” 401 U.S. at 41. Some courts, however, have read Young er et al. as requiring “great and immediate” irreparable harm to justify injunctive relief when prosecution is only threatened, see e. g., Becker v. Thompson, 334 F.Supp. 1386, 1389-1390 (N.D.Ga.1971), aff’d, 459 F.2d 919 (5th Cir. 1972) (denial of injunction not appealed), rev’d sub nom. Steffel v. Thompson, supra; most courts have restricted Younger’s effect to cases where state proceedings are pending, see Note, Implication of the Younger Cases for the Availability of Equitable Relief When No State Prosecution Is Pending, 72 Colum.L.Rev. 874, 895-96 & n. 135 (1972). Most recently the Supreme Court in Steffel v. Thompson, 415 U.S. at 462, 94 S.Ct. 1209, again declined to consider the appropriateness of injunctive relief where the prosecution was only threatened and not pending.

One basis for determining that preliminary injunctive relief is proper in this case stems from the fact that, unlike Younger, here there is no pending state prosecution against appellee. Younger reiterated the traditional rule that injunctions against pending state prosecutions could only be justified when the irreparable injury was both great and immediate. In this way the important principles of equity, comity and federalism would be served by not interfering with and disrupting state proceedings. 401 U.S. at 44. This holding, however, never signified that the protection of constitutional rights was to be sacrificed to the principles of comity and federalism; rather the Younger sextet recognized that, while federal courts are “ ‘the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States,’ ” Steffel v. Thompson, 415 U.S. at 464, 94 S.Ct. at 1218, quoting Frankfurter & Landis, The Business of the Supreme Court 65 (1928), once a state criminal prosecution has begun it normally provides an effective forum for the determination of constitutional rights. This is true even in prosecutions involving regulation of expression protected by the first amendment.

However, when prosecution is only threatened and not pending, the principles given effect in Younger do not basically militate against federal injunctive relief. The principles of comity and federalism and considerations of equity practice “have little force in the absence of a pending state proceeding.” Lake Carriers’ Association v. MacMullan, 406 U.S. at 509. See also Steffel v. Thompson, 415 U.S. at 462, 94 S.Ct. 1209, If there is no pending prosecution, a declaration or injunction will not interfere with or interrupt the state criminal process; rather it will act only upon the executory enforcement of a law in the same manner as an injunction against the enforcement of a law without criminal penalties. This is particularly pertinent here, for there is no guarantee that the appellants will seek to enforce the ordinance in a criminal proceeding; rather they could, as they have in other instances, bring a civil enforcement action. Yet to require the federal courts to withhold equitable relief, to allow state courts in actions not yet instituted to determine constitutional questions, would be the equivalent of requiring exhaustion of judicial remedies, which is specifically not required of § 1983 actions. Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

On the other side of the coin, absent a pending prosecution the state courts are no longer equally able to protect the rights of the threatened party. Where a good faith prosecution is already pending, although the federal courts will not grant relief, the constitutional claims will necessarily be resolved by the state in an orderly procedure. Where the prosecution is only threatened, however, if the federal court does not grant relief, there is a distinct probability that the individual will forego his claimed constitutionally protected activities, and the constitutional claims will never be resolved at all. Cf. Hull v. Petrillo, 439 F.2d 1184, 1186-1187 n. 1 (2d Cir. 1971). In Dombrowski v. Pfister, supra, the Supreme Court acknowledged the “chilling effect” that an overboard statute affecting first amendment rights may have on free expression. While Younger turned aside the suggestion in Dombrowski that such a chilling effect would itself justify the grant of injunctive relief, the fact remains that the effect of an overbroad statute, such as the ordinance here appears to be, is more serious when no prosecution is pending. This is so, again, because when there is a pending prosecution it will determine the constitutional rights, whereas if there is no pending prosecution, the alleged rights are often “chilled” in the sense of never being exercised, and hence never passed upon by any court. Individuals have an interest in avoiding undergoing criminal prosecution to safeguard their rights, an interest which is in itself not unworthy of protection. See Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968); Hygrade Provision Co. v. Sherman, supra; Terrace v. Thompson, supra (“They are not obliged to take the risk of prosecution, fines and imprisonment and loss of property in order to secure an adjudication of their rights,” 263 U.S. at 216); Hogge v. Members of City Council, supra.

Finally, what is before us here is not a permanent injunction against enforcing this ordinance against anyone until the City properly limits it, see Younger v. Harris, 401 U.S. at 51; rather this is merely a temporary injunction against enforcing the ordinance against appellee pending a determination on the merits. As such it merely maintains the status quo which existed for the five years that the City did not interpret the ordinance as applying to premises with peep shows.

Upon all these considerations, therefore, we find that the intrusion on the City’s administration of its criminal laws by this preliminary injunction is minimal and that the values sought to be protected in Younger are in no way intruded upon by affirmance here.

Order affirmed.

HAYS, Circuit Judge

(dissenting):

This case does not present a situation which is yet ripe for decision.

There is no indication that the City would deny plaintiff’s application for a license. If it did so, there are adequate opportunities for administrative review.

The City ordinance which is called into question is not unconstitutional on its face, since it does not purport to limit any First Amendment right. It is entirely proper to require that places of amusement be licensed even if some of the performances presented are protected by the First Amendment. See Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). So far as appears on the face of the ordinance, the license could be denied only on proper grounds of protection of public health and safety.

      . Article 1, in pertinent part, reads as follows :
      § B32-1.0 License required. — a. It shall be unlawful for any person to operate any place or premises of public amusement . . . without a license therefor, upon payment of such fees as may be prescribed by the commissioner, and upon such terms and conditions as he deems necessary for proper regulation and good order.
      § B32-4.0 Conditions of license. — Such licenses, in the discretion of the commissioner, may be subject to provisions and conditions which, in his judgment, may be essential for the welfare and benefit of the people of and visitors to the city
      § B32-21.0 Violations. — Except as otherwise specifically provided therein, any person who shall violate, or refuse or neglect to comply with any provision of this article, upon conviction thereof, shall be punished by a fine of not more than five hundred dollars or by imprisonment for not more than six months, or by both, and any such person, also, for each offense, shall be subject to the payment of a penalty of two hundred fifty dollars to be recovered in a civil action brought in the name of the city.

      . Such prosecutions under an ordinance found unconstitutional in previous prosecutions, however, might well be subject to injunction from a federal court as “bad faith” or harassment actions. See Younger v. Harris, 401 U.S. 37, 48-49, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). See also Krahm v. Graham, 461 F.2d 703 (9th Cir. 1972); Callahan v. Sanders, 339 F.Supp. 814 (M.D.Ala.1971).

      . The fact- that no prosecution has yet actually been brought does not prevent this from being a proper case or controversy under Article III. In Younger the plaintiffs against whom no prosecutions were pending had not alleged or demonstrated a threatened prosecution. 401 U.S. at 41-42. In Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971), there was no allegation, much less demonstration, of threatened or imminent prosecutions. See also Lecci v. Cahn, 493 F.2d 826, 828 (2d Cir. 1974). Cf. Canal Theatres, Inc. v. Murphy, 473 F.2d 4, 5-6 n. 2 (2d Cir. 1973). Steffel v. Thompson, 415 U.S. 452, 458-460, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), made it clear that in the situation we have here, where a plaintiff has demonstrated an actual threat of enforcement, a case or controversy exists.

      . The district court found that 414 Theater Oorp. had not applied for a license and that it had no intention of doing so. In exhibit A annexed to appellant Myerson’s affidavit below, howevér, appear application papers submitted to the City by the “414 W. 42nd St. Theater Corp.” — papers the appellants here argue show that 414 has in fact submitted its case to the administrative process. From the record and Judge Lasker’s finding we can only assume that appellee here is a different corporate entity from the corporation that applied for the license. In any case, appellants’ argument that appellee, having submitted its application, must be required to exhaust its administrative remedies is frivolous, because appellee clearly states an otherwise good cause of action under 42 U.S.C. § 1983. See Gibson v. Berryhill, 411 U.S. 564, 574-575, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973). See generally Monaghan, First Amendment “Due Process,” 83 Harv.L.Rev. 518, 540-41 (1970).

      . The instructions for applying for a license note at the outset that
      The filing of an application does not constitute permission to operate. A license must actually be in the possession of the licensee before any operation may be legally conducted.

      . Of the other Younger cases, Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), while a suit for a declaratory judgment, involved a pending criminal prosecution against the parties seeking relief; in Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971), on the other hand, not one of the plaintiffs had ever been prosecuted, charged, arrested or threatened with prosecution under the statute under review; the majority in Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971), treated the case as one in which a prosecution was pending; Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781 (1971), also involved a pending prosecution, and despite allegations of bad faith and harassment, the court below had made no findings of great and immediate irreparable harm so as to justify injunctive relief ; in Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971), the plaintiff was already under indictment, which the Court treated as a pending prosecution, and therefore absent a showing of great and immediate irreparable harm the preliminary injunction was improper. Thus, none of the sextet (sometimes referred to as a “septet” since Samuels v. Mackell also included Fernandez v. Mackell) involved the dual factual bases present here of (1) threatened (but not pending) criminal prosecution and (2) irreparable harm.


source: Caselaw Access Project

author: McCREE, Circuit Judge.

license: Public Domain

text:
    Paul Henry MARSHALL and Roy Thomas Marshall, Petitioners-Appellants, v. Jim ROSE, Warden, Respondent-Appellee.
    No. 73-1361.
    United States Court of Appeals, Sixth. Circuit.
    Argued Feb. 12, 1974.
    Decided June 25, 1974.
    Frank L. Flynn, Jr. (court appointed), Knoxville, Tenn., for petitioners-appellants.
    Robert H. Roberts, Asst. Atty. Gen., Nashville, Tenn., for respondent-appellee; David M. Pack, Atty. Gen. & Reporter, of counsel.
    Before EDWARDS, McCREE, and LIVELY, Circuit Judges. •
   McCREE, Circuit Judge.

This appeal from the denial of a petition for a writ of habeas corpus, 28 U. S.C. § 2241, requires us to determine whether a state trial court committed prejudicial constitutional error when it admitted a robbery victim’s in-court identification of appellants without first finding that this identification had not been irreparably tainted by an unconstitutional showup conducted in the absence of appellants’ counsel. The district court held that admission of this evidence violated the Constitution, but found the error harmless. We hold that the district court erred and reverse.

On June 22, 1967, a sixty-six year old man who lived alone in an isolated part of East Tennessee was robbed at gunpoint outside his home by two masked men, one of whom shot him in the abdomen. Before fleeing, the robbers took Six Thousand, Three Hundred dollars from his person and bound him hand and foot. Despite his severe injury, the victim was able to free himself and to walk a considerable distance to a neighbor’s home for help. He was hospitalized for his wounds for twenty days.

On July 6, the appellants, Roy and Paul Marshall, who are brothers, were arrested in the adjoining county where they resided, after the police learned that they had been seen in the vicinity of the victim’s home on the day of the robbery, and that the automobile driven by Roy Marshall that day had been found burned out on the next day. On July 7, a showup was conducted, and a neighbor of the victim identified the Marshall brothers as the men he had seen about three-quarters of a mile from the victim's home six hours before the robbery. Following this identification, the two brothers were formally charged with armed robbery. Shortly thereafter, they retained counsel.

On July 18, the day of the preliminary hearing, the victim was released from the hospital, and he proceeded to the jail where he identified appellants as his assailants after a showup was conducted without notice to and in the absence of the Marshall brothers’ counsel.

The Marshalls were tried in Sevier County Circuit Court before a jury in November 1967, convicted of armed robbery, and sentenced to twenty-five years imprisonment. At trial, the neighbor identified them as two of the three men he had seen in the vicinity of the victim’s home on the morning of the robbery; and the victim identified them as his assailants. On appeal to the Tennessee Court of Criminal Appeals, their convictions were affirmed, one judge dissenting because constitutionally impermissible identification had been employed at the trial. The majority opinion did not discuss this issue. Thereafter, appellants sought post-conviction relief in the state court, and the petition was denied on February 22, 1971. The denial of the petition was affirmed on appeal on November 10, 1971, and the Tennessee Supreme Court denied their petition for certiorari on September 22, 1972. A month later, appellants filed a petition for a writ of habeas corpus in federal district court.

The district court conducted an evidentiary hearing and concluded, on the basis of that hearing and the records of the state proceedings, that: (1) the first showup, at which the Marshall brothers were identified by the victim’s neighbor, did not violate their right to the assistance of counsel because they had not yet been formally- charged, Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), and did not violate their right to due process of law; (2) the second showup, at which the Marshall brothers were identified by the victim, was unconstitutional because they had been formally charged, and their retained counsel was given no notice of or opportunity to be present at the confrontation, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); (3) the state trial court’s admission of the victim’s in-court identification was constitutional error because it did not make a prior determination that these identifications were not tainted by the showup and were of independent origin; and (4) admission of the in-court identification was not prejudicial because the victim “was very specific in his testimony” at the evidentiary hearing “that his in-court identifications of the petitioners was based upon his observations of them at the scene of the crime; and not upon his observations of them during the show-up (or show-ups).” Accordingly, the failure of the state trial court to conduct the hearing required by the Wade case was harmless beyond a reasonable doubt.

On appeal it is contended that the constitutional error complained of was not harmless beyond a reasonable doubt because the in-court identification did not have an origin independent of the show-up and because “ ‘there is a reasonable possibility’ ” that this identification “ ‘might have contributed to the conviction.’ ” Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967), citing Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963).

Although the danger inherent in eyewitness identification has long been a subject of grave-concern, it was not until 1967, a few weeks before the challenged showup in this case, that the Supreme Court, in the Wade-Gilbert-Stovall trilogy established standards and procedures for conducting pretrial confrontations between an eyewitness to a crime and the accused. In United States v. Wade, supra, the Court held that when a criminal prosecution has been initiated, the accused must be permitted to have counsel present during a pretrial confrontation with an eyewitness to the crime. If a confrontation is conducted in the absence of counsel and without a waiver by thé accused, the eyewitness may not make an in-eourt identification of the accused unless the state can demonstrate by “clear and convincing evidence” that the witness’ identification has an origin independent of the pretrial confrontation. Id., 388 U.S. at 240, 87 S.Ct. 1926.

In this case, it is undisputed that the Marshall brothers, although formally charged, were not informed of their right to have counsel present during the showup at which the victim identified them as his assailants, and it is also undisputed that their retained counsel was given no notice of the show-up. Accordingly, as the district court held, the showup was unconstitutional, and the victim’s in-court identification of appellants should not have been admitted unless the state had demonstrated by “clear and convincing evidence” that the in-court identification had an origin independent of the showup. Id. at 240, 87 S.Ct. 1926.

Determination of the existence of an independent origin for an in-court identification

requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any prelineup description and the defendant’s actual description, any identification prior to [the] lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant, to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup. Id. at 241, 87 S.Ct. at 1940.

In this case, the district court, instead of the trial court as mandated by Wade, held an evidentiary hearing at which evidence of these factors was adduced, and appears to have based its conclusion that the victim’s in-court identification was not tainted by the illegal showup solely upon the victim’s answers in the following colloquy:

Q. Mr. Miller, when you identified these two men at the trial as the ones who robbed you, did you do it on the basis of what you had seen at the jail or what you saw out there at the time of the robbery?
A. I fixed it on the basis at the time they shot me and robbed me.
Q. And not at the time you saw them in jail?
A. No.

Whether the trial judge who was unaware of the requirements of Wade would have made the same determination can only be a matter of speculation. And, if he had undertaken this inquiry, he- might have developed evidence different from and additional to that considered by the district court. Also, despite the response of the victim to obviously leading questions, the record does not show by “clear and convincing evidence” that the identification had an origin independent of the showup.

In making this determination, we consider the vagaries of eyewitness identification that concerned the Supreme Court in the Wade-Gilbert-Stovall trilogy, and we observe that whenever an eyewitness is summoned by the police to make an identification in a pretrial confrontation, it is not unlikely that he believes that the police have apprehended, or, at least, think that they have apprehended, the perpetrator of the crime that he has witnessed. Moreover,' a showup in which an eyewitness is asked only to indicate whether “this is the man” is in.herently more suggestive and more conducive to misidentification than is a fairly conducted lineup in which the suspect is placed among persons of similar size and description. Cf. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). See generally, N. Sobel, “Eye-witness Identification: Legal and Practical Problems” (1972). Accordingly, a lineup is a preferred method of eyewitness identification. See Stovall v. Denno, supra, 388 U.S. at 302, 87 S.Ct. 1967.

In this case, more than just the suggestibility of the showup employed persuades us that the victim’s in-court identification of the Marshall brothers was tainted by it. Considering the factors that the Supreme Court has stated are relevant to the determination whether there is an independent source of an in-court identification, we find that the victim’s opportunity to observe his assailants was very limited, that his description of them does not match the actual physical characteristics of appellants in a crucial respect, and that he first identified one brother as the person who shot him and then changed his mind and identified the other brother as that person.

The victim testified that he was shot in the abdomen at the beginning of the robbery. The robbers wore dark masks that covered their faces from the bridges of their noses to their chins, and head coverings of some kind that hid their hair and their ears. The victim states that he could see only their eyes and their “general shape.” The eyes of the robber who shot him were “rooster-colored,” or brown. One of the robbers was slim and the other, heavy. This description was all the victim was able to give at any of the proceedings.

At the preliminary hearing, the victim testified that Roy Marshall, the older and heavier of the two brothers, had shot him. At trial, he changed his mind and testified that Paul Marshall had shot him. Neither brother has “rooster-colored,” brown or hazel eyes. Both have blue eyes. When asked by the district court to explain the discrepancy between his description and the actual physical appearance of Paul Marshall, the victim stated, “Well, I believe his eyes have changed some since then.” The district court, apparently troubled by this explanation, then engaged the victim in the following colloquy:

Q. You think they have changed from the fellow that you saw before, is that right ?
A. No, that is the same fellow.
Q. What about his eyes, have his eyes changed?
A. They seem like they have.

Because of the limited opportunity that the victim had to observe his assailants, his physical condition at the time, the discrepancy in his description of the color of his assailants’ eyes, and his misidentification of the person who shot him, we conclude that the victim’s in-court identification was tainted by' the illegal showup. This conclusion is also supported by other testimony that he gave. At trial, for example, he was unable to describe the clothing worn by his assailants except that it was “very sooty” and “kind of like [the clothing] they got on now.” Nor could he remember what kind of head covering his assailants had worn or whether he could see any hair at all. At the preliminary hearing, he stated in response to a question concerning the facial covering that his assailants had worn, “It was kindly dark like a mask.” When asked whether it was “A handkerchief or something,” he responded, “It looked to. me more like it was a cloth of some kind. In other words, them with them two guns on me -and everything I thought it might be best not to look too much.” When asked about this statement during the hearing conducted by the district court, the victim first denied that he had given that testimony and only admitted that he might have done so after the relevant portion of the preliminary hearing transcript was read to him.

There is only the victim’s bare assertion that his in-court identification of the Marshall brothers was independent of the impermissible showup to counter the contradiction in his other .testimony. And the Supreme Court has cautioned that the danger of misidentification is “particularly grave when the witness’ opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest,” and that “[t]he impediments to an objective observation are increased when the victim is the witness . . . [because his] understandable outrage may excite vengeful or spiteful motives.” United States v. Wade, supra, 388 U.S. at 229, 230, 87 S.Ct. at 1933. Accordingly, as Judge McGowan stated, in writing for the District of Columbia Circuit Court of Appeals, sitting en banc, “although the positiveness of the witness about an independent base for an in-court identification is a relevant factor, it is to be weighed warily and in the realization that the most assertive witness is not invariably the most reliable one.” Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, 1242 (1968), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969).

After careful examination of the record and consideration of the victim’s age, his physical condition and emotional state at the time of the robbery, the discrepancy between his description of his assailants and the physical appearance of appellants, and his apparent misidentification of Roy Marshall as the person who shot him, we hold that the evidence is not “clear and convincing” that the victim’s in-court identification was independent of the illegal showup. If the trial court had conducted the inquiry mandated by Wade and had so concluded, the victim would not have been permitted to identify appellants as his assailants. Accordingly, unless the admission of this evidence was “harmless beyond a reasonable doubt,” the decision of the district court must be reversed. Chapman v. California, supra, 386 U.S. at 24, 87 S.Ct. 824.

Only rarely, if ever, can the admission of an in-court identification by the victim of a brutal crime who is also its only eyewitness be considered harmless. In this case, moreover, there are additional factors that militate against a finding of harmlessness. The state’s case against appellants rested, as the state virtually conceded before the district court, almost entirely upon eyewitness identification, both by the victim and by his neighbor. Apparently, the state did not recover any of the proceeds of the robbery because it did not introduce into evidence either the money or the firearms stolen from the victim. The neighbor, moreover, was able to testify only that he saw the Marshall brothers along with a third man six hours before the robbery three-quarters of a mile from the victim’s home. Although the neighbor spoke to Roy Marshall in the course of helping him start his disabled vehicle, he saw the other two men only at a distance and was apparently able to identify Paul Marshall only by the color of his hair. Roy Marshall, in his initial statement to the police admitted freely that he had seen the neighbor on the day of the robbery and that this neighbor had helped him with his car — after the neighbor indicated that he was not sure if he had ever seen Roy Marshall before. It was this automobile that was found burned out the day after the robbery. Roy Marshall also explained to the police that he was in the vicinity that day because someone had paid him for a ride there in order to purchase some whiskey. Paul Marshall, according to his fellow employee, was working at a restaurant miles away from the place where the neighbor testified that he saw him at the relevant time. And there was no physical evidence such as fingerprints or footprints to place appellants in the victim’s home.

Accordingly, it is evident from this summary of the most damaging evidence of appellants’ guilt that the admission of the in-court identification by the victim was not harmless beyond a reasonable doubt.

Reversed and remanded with instructions to grant the petition for a writ of habeas corpus unless the state retries appellants within a reasonable time and makes the proper inquiry and finding before admitting the challenged in-court identification.

      . The state did not introduce into evidence the victim’s identification of appellants after the showup. Had the state done so, we would have been required to reverse appellants’ conviction without inquiring whether the victim’s in-court identification had a source independent of the illegal showup. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Evidence of the showup did come out during ei’oss-examination, however, when defense counsel sought to challenge the victim’s credibility. We do not believe, as the state suggests, that the failure of defense counsel to object to the admission of the victim’s in-court identification because he was not aware of the Supreme Court’s decision in the just decided case of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), nor his eliciting evidence of the showup during cross-examination requires the conclusion that appellants “ ‘after consultation with competent counsel or otherwise, understanding^ and knowingly forewent the privilege of seeking to vindicate . . . [their] federal claims in the state courts, whether for strategic, tactical or any other reasons that can fairly be described as the deliberate bypassing of state procedures . . . . ’ ” Henry v. Mississippi, 379 U.S. 443, 450, 85 S.Ct. 564, 569, 13 L.Ed.2d 408 (1965), citing Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). We therefore agree with the district court which held, after its evidentiary hearing, that appellants did not waive their federal constitutional claims during the state proceedings.

      . Appellants also contend that the showup was “so unnecessarily suggestive and conducive to irreparable mistaken identification,” that they were denied due process of law. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). We need not decide this question because of our present disposition. It appears that even if there were a violation, the state might be permitted to elicit the in-court identification if it could establish by clear and convincing evidence that the in-court identification had an origin independent of the unlawful showup. E. g., United States ex rel. Phipps v. Follette, 428 F.2d 912 (2d Cir. 1970). We wish, however, to note our reservations con-cerning the propriety of utilizing an independent basis test after a due process violation is established. See United States v. Clark, 499 F.2d 889 (6th Cir. 1974).

      . See N. Sobel, “Eye-Witness Identification: Legal and Practical Problems,” vi (1972), Levine and Tapp, The Psychology of Criminal Identification: The Gap from Wade to Kirby, 121 U.Pa.L.Rev. 1079 (1973), and the authorities cited in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

      . United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

      . United States v. Wade, 388 U.S. at 241, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Cf. Neil v. Biggers, 409 U.S. 188, 200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), where the Supreme Court, in assessing the reliability of an in-court identification made after a showup, concluded that due process of law had not been violated. It considered that the witness had had an excellent opportunity to observe her unmasked and undisguised assailant for approximately a half-hour, that she had given a detailed description of him to the police shortly thereafter, and that she had made no previous identification of anyone else in any of the photographic displays, sliowups, and lineups to which she had been exposed despite their suggestability.

      . When the district court asked counsel for the state whether “the conviction depended] on identification by this witness,” he responded, “Well, of course, that is hard to say. There was some other proof. I would say that was a very strong part of the proof. He was the only eyewitness to the crime.”


author: MANSFIELD, Circuit Judge:

text:
    John MILESKI, an infant over the age of 14 years, by his parent and natural guardian, Edward Francis Mileski, Plaintiffs-Appellees, v. The LONG ISLAND RAIL ROAD COMPANY, Defendant-Appellant.
    No. 977, Docket 73-2751.
    United States Court oí Appeals, Second Circuit.
    Argued May 8, 1974.
    Decided June 3, 1974.
    As Amended Sept. 3, 1974.

      Arnold P. Messing, New York City (George M. Onken, Jamaica, N. Y., Alexander R. Sussman, Cravath, Swaine & Moore, New York City, of counsel), for defendant-appellant.
    Peter M. J. Reilly, New York City (Edward G. Dougherty, Nicholas T. Diakow, New York City, of counsel), for plaintiffs-appellees.
    Before ANDERSON, FEINBERG and MANSFIELD, Circuit Judges.
   MANSFIELD, Circuit Judge:

Appellant, an 18-year old trackman employed by the Long Island Rail Road (“Railroad” herein), brought suit against it under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. (“FELA” herein) for damages for injuries sustained when a fellow.worker engaged in driving railroad spikes struck a rail, causing a piece of steel to fly off and to pierce appellee’s left eye with the result that he suffered great pain, a permanent loss of vision in his left eye and was hospitalized for a long period. The Railroad appeals from a judgment against it based on a jury verdict awarding $250,000 damages, claiming (1) that there was insufficient evidence of negligence to support a finding of liability, (2) that the district court erred in admitting evidence of related pain in plaintiff’s right eye, which had not been alleged or claimed before trial, (3) that it was an abuse of discretion on the part of the court not to order a new trial because of prejudicial improprieties on the part of plaintiff’s counsel in his summation, and (4) that the amount of the award was excessive. We affirm.

Construing the proof most favorably to the plaintiff, there was sufficient evidence to support a finding that negligence on the part of the Railroad had played a role in causing plaintiff’s injury, which is the test. See Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); Kuberski v. New York Central Railroad Co., 359 F.2d 90, 93 (2d Cir. 1966), cert. denied, 386 U.S. 1036, 87 S.Ct. 1475, 18 L.Ed.2d 600 (1967); Eaton v. Long Island Railroad Co., 398 F.2d 738 (2d Cir. 1968). For example there was proof that, although the Railroad’s rules specified that safety goggles be worn by employees located in the vicinity of activities such as spiking, Railroad supervisors had relaxed enforcement of the rule, permitting employees to dispense with wearing glasses and failing to replace the safety glasses of Mileski and others after they had broken. The jury could reasonably have inferred that if the safety glasses had been replaced and the rule enforced the accident would not have happened.

Although injury to plaintiff’s right eye was not expressly claimed, the Railroad was alerted to the possibility of “sympathetic ophthalmia” by the express reference to it in the report of the treating physician, Dr. Paul Todtfeld, dated December 6, 1972, attached to plaintiff’s answers to defendant’s interrogatories dated May 19, 1973, which had been furnished to defendant more than five months before trial. Furthermore, Judge Weinstein pointed out that “the left eye is interconnected with the right eye through the nervous system in the brain and therefore, ... an injury to the left eye alone has a symptomatic effect on the right eye . even a layman like me knows this.”

-Assuming that defense counsel was in fact surprised by the introduction of evidence with respect to the right eye, the trial judge on October 4, 1973, offered the Railroad a continuance which was refused. The trial continued thereafter until October 9, 1973, at which time the court, in denying the Railroad’s motion to set aside the verdict, pointed out that “it had been in no hurry to complete this case,” that it had been prepared to grant a continuance “with respect to the right eye damages,” and that a continuance would have been granted with respect to the mental anguish aspects “had it been requested.” Having rejected this clear opportunity to obtain and present rebuttal medical proof, defendant cannot now complain of any prejudice.

We also fail to find any substantial support for the Railroad’s contention that the summation of plaintiff’s counsel so exceeded the bounds of propriety that a new trial was mandated. Improper or intemperate argument by counsel in summation may necessitate a new trial where it tends to arouse undue passion or prejudice on the part of the jury, thereby depriving the opposite party of a fair trial. See Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. Moquin, 283 U.S. 520, 51 S.Ct. 501, 75 L.Ed. 1243 (1931); New York Central Railroad Co. v. Johnson, 279 U.S. 310, 49 S.Ct. 300, 73 L.Ed. 706 (1929); Koufakis v. Carvel, 425 F.2d 892, 900-905 (2d Cir. 1970); San Antonio v. Timko, 368 F.2d 983, 986 (2d Cir. 1966); Klotz v. Sears, Roebuck & Co., 267 F.2d 53 (7th Cir.), cert. denied, 361 U.S. 877, 80 S.Ct. 141, 4 L.Ed.2d 114 (1959); Brown v. Walter, 62 F.2d 798 (2d Cir. 1933). However, in the present case the references by Mileski’s counsel to the possibility of injury to Mileski’s right eye and to the mental strain that might be suffered as a result of his being limited in the future to reliance upon one eye fell far short of overstepping the bounds of propriety, since they had some evidentiary support in the record.

The references by plaintiff’s counsel in his summation to specific amounts of money which in his opinion, the jury should award for pain and suffering fall in a somewhat different category. The problem posed by such statements stems from the unavoidably vague measure of damages which the jury is instructed to apply, i. e., fair and reasonable compensation, to the extent that injuries, pain and suffering can be translated into dollars. A jury with little or no experience in such matters, rather than rely upon its own estimates and reasoning, may give undue weight to the figures advanced by plaintiff’s counsel, particularly if he conveys the impression (as frequently happens) that he speaks on the basis of extensive trial experience. Without benefit of any counter-figures from other sources — defense counsel contesting liability rarely risks being drawn into a discussion of damages, since to do so might weaken his claim of any liability — the jury has before it only one set of extravagantly high figures, which it may be tempted to treat as evidence rather than as mere argument. That the present ease was no exception is demonstrated by the following excerpts from the summation of Mileski’s counsel on the subject of damages:

“When I started this lawsuit and I drew the complaint, and I saw this boy for the first time. I was struck by his appearance not only the fact that he had this terrible injury — and this is a loss of a member, a leg, an arm, an eye, a member," to my way of thinking, this is my opinion, one of the most important things that you have in your body, if not the most important, the one that I put more value and store on than anything else, the eye.
“I brought an addendum [sic] clause in excess of $1 million. When I say, ‘in excess,’ I mean just that. . . . I don’t think I was wrong on that day that I drew that complaint.
* -X- * * -X- *
“Let me say, and just let me put that in, one segment. I say for that moment on the bridge [the accident occurred on a railroad bridge] and the pain and suffering, for that period of time of approximately one moment, when the pain was intense, when the depression was worse than it was ever before, and hopefully never again as bad, $150,000 for that time period, $150,000 for what he went through mentally, physically.
-X- -X- * -X- * *
“For his life expectancy, for the loss of the eye, would you say $15 a day for fifty years would sound too much? It doesn’t sound like anything at all, does it? It isn’t much at all when you think ‘Now, I’ll be around like this (indicating) for the rest of my life.’ $15 a day, and if you compute that for fifty years, it amounts to $5,475 a year, and a total of $284,700 for the loss of an eye.
* * -» * -X- *
“But the fact that his eyes are strained and he has problems with light accommodation, this is an added burden that this young man has to carry for all the fifty projected years.
“I say $100,000 for that. For fifty years, and if you bring it down to days and hours and minutes, it represents pennies per hours and minutes. I feel he is entitled to that.
“Now, even worse than all the others, this occult fixation that the doctor testified to, worry, the depression he feels and will feel every day of his life.
* * **-»■*
“I say that’s worth a minimum of $200,000.
*«•***»
“His lovely little wife told how he, when anybody comes to his home, he runs for his glasses if he’s not wearing them at that time. You have seen it with people who have some problems with their eyes. There’s a consciousness of it. They’re ill at ease. There can be no thought about him not trying to do what’s right in relationship to himself and his family. $75,000? Could you think that would be — and divide that into fifty years and bring it down to days, minutes and hours. It’s not much at all. It’s pennies. It’s dollars.
“The doctor talked about the problem that there is always some sort of condition in the left eye. That there will always be pain. I can read certain of these things to you. Before I sit down I’m just going to read a few of these things.
“Another $100,000? I added that up. . . . It adds up to $915,040.
* * *- ->:• ■» *
“Will he be able to make a living in this fifty years stretching along that long tough road that life consists of. This is all that he has, with the worries that he has. So, you can fix a sum of money for that. Add to it $900,000. Add to it what I have mentioned.”

The effectiveness of the foregoing comments is attested to by the jury’s return of a $250,000 verdict. Applying the standard laid down in Dagnello v. Long Island Railroad Co., 289 F.2d 797 (2d Cir. 1961), see Grunenthal v. Long Island Railroad Co., 393 U.S. 156, 159, 89 S.Ct. 331, 333, 21 L.Ed.2d 309 (1968), we cannot say that this award was so grossly excessive or shocking to the conscience that it would be a “denial of justice to permit it to stand.” On the other hand, the award represents what appears to be an all-time monetary high for loss of an eye and is considerably in excess of other awards rendered during recent years for substantially the same injuries.

With a view to avoiding ex-cessiveness that might arise from undue weight being given to counsel’s opinion, some jurisdictions have prohibited counsel in summation from giving any opinion as to the dollar amount which the jury should award for pain and suffering, from suggesting formulas such as per diem or unit-of-time dollar amount which, when multiplied by the estimated period of suffering, might produce an unreasonably high lump sum, or from mentioning the ad dam num figure sought in the complaint. We have been unwilling to adopt such a drastic measure as a flat prohibition, preferring a more flexible approach that would leave the matter largely to the trial judge’s discretion. See, e. g., Rush v. Cargo Ships & Tankers, Inc., 360 F.2d 766 (2nd Cir. 1966). Since the trial judge is usually better able on the basis of his acquaintanceship with the evidence in each case to guage the potentiality for abuse and to determine whether such references by counsel may have an unduly prejudicial effect upon the jury, he should remain free in his discretion either to prohibit trial counsel from giving the jury any opinion as to specific amounts that might be awarded for pain and suffering or to impose such reasonable limitations as he may prescribe. In the latter event, however, the court should certainly not limit itself to the frequently used “boiler-plate” type of charge to the effect that “arguments of counsel are not evidence” but should, either sua sponte or upon request, specifically caution the jury that the dollar figures advanced by counsel do not constitute evidence but merely represent argument which the jury is free to disregard in its deliberations. See, e. g., Philadelphia & R. Ry. Co. v. Skerman, 247 F. 269 (2d Cir. 1917); Smith v. Philadelphia Transp. Co., 173 F.2d 721, 726 (3d Cir. 1949). Since no objection was made in the present case to the opinions and suggestions expressed by plaintiff’s counsel to the jury with respect to the lump sums that might be awarded and since no request was made for instructions along the foregoing lines, the award must stand. Counsel’s summation was not so outrageous, or the trial judge’s failure to caution the jury with respect to it so fundamental an error, as to mandate reversal. See, e. g., New York Central Railroad Co. v. Johnson, 279 U.S. 310, 318-319, 49 S.Ct. 300, 73 L.Ed. 706 (1929); San Antonio v. Timko, 368 F.2d 983, 986 (2d Cir. 1966). However, we think that in the future the district court would be well advised to give such an instruction sua sponte where it is not requested by counsel.

The judgment of the district court is affirmed.

      . See, e. g., Rapisardi v. United Fruit Company, 441 F.2d 1308 (2d Cir. 1971), remanding for further determination of all issues relative to damages, 300 F.Supp. 942 (S.D.N.Y.1969) ($110,403); Filler v. Rayex Corp., 435 F.2d 336 (7th Cir. 1970) ($101,000); Raman v. Carborundum Co., 31 App.Div.2d 552, 295 N.Y.S.2d 534 (2d Dept. 1968) ($50,000); Hogenson v. Service Armament Co., 77 Wash.2d 209, 461 P.2d 311 (1969) ($130,000); Rill v. Chiarella, 50 Misc.2d 105, 269 N.Y.S.2d 736 (Sup.Ct. 1966), modified, 30 App.Div.2d 852, 293 N.Y.S.2d 1 (2d Dept. 1968), affd., 25 N.Y.2d 702, 306 N.Y.S.2d 955, 255 N.E.2d 183 (1969) ($75,000); Baynes v. City of New York, 23 App.Div.2d 756, 258 N.Y.S.2d 473 (2d Dept. 1965) ($70,000); Ferguson v. Erie Railroad Co., 235 F.Supp. 72 (S.D.N.Y.1964) ($35,000); Burnett v. Caho, 7 Ill.App.3d 266, 285 N.E.2d 619 (3d Dist.1972) ($50,000); Holten v. Amsden, 161 N.W.2d 478 (N.D.1968) (-27,000); Larrabee v. United States, 254 F.Supp. 613 (S.D.Cal. 1966) ($100,000); Dallas v. Granite City Steel Co., 64 Ill.App.2d 409, 211 N.E.2d 907 (5th Dist. 1965) ($115,000); City of Phoenix v. Boggs, 1 Ariz.App. 370, 403 P.2d 305 (1965) ($20,000).

      . See, e. g., Botta v. Brunner, 26 N.J. 82, 138 A.2d 713 (1958); Stassun v. Chapin, 324 Pa. 125, 188 A. 111 (1936); Affett v. Milwaukee & Suburban Transp. Corp., 11 Wis.2d 604, 106 N.W.2d 274 (1960) ; Goldstein v. Fendelman, 336 S.W.2d 661 (Mo. 1960). See contra: Haycock v. Christie, 101 U.S.App.D.C. 409, 249 F.2d 501 (1957); McLaney v. Turner, 267 Ala. 588, 104 So.2d 315 (1958); Seffert v. Los Angeles Transit Lines, 364 P.2d 337, 15 Cal.Rptr. 161 (1961); Kindler v. Edwards, 126 Ind.App. 261, 130 N.E.2d 491 (1955); Haley v. Hockey, 199 Misc. 512, 103 N.Y.S.2d 717 (1950).

      . See, e. g., Botta v. Brunner, supra, and decisions cited in Johnson v. Colglazier, 348 F.2d 420, 428 n. 7 (5th Cir. 1965) (Brown, J. dissenting); Henne v. Balick, 51 Del. 369, 146 A.2d 394 (1958); King v. Railway Express Agency Inc., 107 N.W.2d 509 (N.D.1961); Harper v. Bolton, 123 S.E.2d 54 (S.C.1962); Certified TV & Appliance Co. v. Harrington, 201 Va. 109, 109 S.E.2d 126 (1959). See contra: Yates v. Wenk, 363 Mich. 311, 109 N.W.2d 828 (1961); Four-County Elec. Power Ass’n v. Clardy, 221 Miss. 403, 73 So.2d 144 (1954); Johnson v. Brown, 75 Nev. 437, 345 P.2d 754 (1959); Olsen v. Preferred Risk Mut. Ins. Co., 11 Utah 2d 23, 354 P.2d 575 (1960) Jones v. Hogan, 56 Wash.2d 23, 351 P.2d 153 (1960).

      . See, e. g., Cooley v. Crispino, 21 Conn.Sup. 150, 147 A.2d 497 (1958). See contra: Kinnear v. General Mills Inc., 308 Mass. 344, 32 N.E.2d 263 (1941); Sanders v. Boston & Me. R.R., 77 N.H. 381, 92 A. 546 (1914).

      . On this appeal defendant was represented not by his trial counsel but by different counsel.

      . The Railroad here seeks to excuse its counsel’s failure to object to certain allegedly inflammatory portions of plaintiff’s summation on the ground that a protest would “only serve to emphasize the evil,” citing Brown v. Walter, 62 F.2d 798 (2d Cir. 1933). However, unlike the situation in Brown, a prompt objection here to counsel’s first mention of the subject or, better still, a request out of the jury’s presence for an advance ruling by the court, would have avoided any such prejudice. A ruling in defendant’s favor upon such a request would have eliminated most, if not all, of the remarks claimed to have been prejudicial. If the court permitted the comments it might have restricted their impact by instructing the jury that they amounted merely to argument, which the jury might disregard, and that they did not constitute evidence in the case.


author: FEINBERG, Circuit Judge:

text:
    In the Matter of Thomas Di BELLA, a witness before a Special May, 1974 Grand Jury in the Eastern District of New York.
    No. 1218, Docket 74-1813.
    United States Court of Appeals, Second Circuit.
    Argued June 27, 1974
    Decided July 3, 1974.
    Henry J. Boitel, New York City (Philip Vitello, New York City, on the brief), for appellant.
    Robert G. DelGrosso, Atty., Dept, of Justice (David G. Trager, U. S. Atty. for the E. D. N. Y.; Gerard T. McGuire, Atty., Dept, of Justice, on the brief), for appellee.
    Before MOORE and FEINBERG, Circuit Judges, and PALMIERI, District Judge.

       Of the United States District Court for the Southern District of New York, sitting by designation.

   FEINBERG, Circuit Judge:

Thomas Di Bella appeals from an order of the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, holding him in civil contempt. For reasons given below, we affirm the judgment of the district court.

We state the relevant facts briefly since the issue is narrow, the matter is urgent and we are commanded to dispose of the appeal “as soon as practicable, but not later than thirty days from the filing of” the appeal — a period which in this case expires on July 13, 1974. In May 1974, a Special Attorney attached to the Brooklyn Strike Force applied to the Department of Justice for authorization to seek an immunity order regarding appellant Di Bella in his appearance before a special grand jury in the Eastern District of New York. This body was empanelled to investigate racketeering — in particular, illegal gambling and loan sharking and related activities. A designated Assistant Attorney General approved the request. Thereafter, the Special Attorney applied to the United States District Court for the Eastern District of New York for an order granting immunity to Di Bella under 18 U.S.C. §§ 6002, 6003, reproduced in the margin. In the course of the hearing on the application, the United States Attorney for the Eastern District personally appeared and signed the application for an immunity order. Chief Judge Mishler then granted the immunity sought. Nevertheless, Di Bella refused to answer questions put to him, despite the court’s order to do so. The judge thereafter held Di Bella in civil contempt, and sentenced him to a term of six months or the life of the grand jury, whichever proved to be shorter, or until such earlier date as he chose to purge himself by complying with the order to testify. Execution of the sentence was stayed, and the matter is before us on an expedited appeal from the judgment of contempt.

Appellant’s argument is bottomed on alleged defects in the procedure followed by the Government in securing the grant of immunity. He claims that 18 U.S.C. § 6003, see note 2, contemplates a three-step method of obtaining immunity orders for grand jury witnesses: (1) application to the Attorney General, his Deputy or designate; (2) approval by one of these officials; and (3) subsequent request to the court. Appellant claims that steps one and three in this procedure require the personal approval and participation of the United States Attorney for the district in which the grand jury is convened. It is conceded that in this case the Special Attorney— without the knowledge of the United States Attorney- — procured the Department of Justice approval and applied to the district court to immunize Di Bella. According to appellant, this rendered invalid both the order of immunity and the contempt order based upon it.

Appellant relies heavily on the language in 18 U.S.C. § 6003(b) that “A United States attorney may, with the approval of the Attorney General, the Deputy Attorney General, or any designated Assistant Attorney General, request an [immunity] order when in his judgment” (emphasis added) the statutory criteria are met. The language by its terms applies only to step three in the process, the request to the district court for an order granting immunity. But according to appellant, this manifests a congressional desire to circumscribe immunity grants by limiting them to instances where, in the judgment of the United States Attorney, the testimony of the individual “may be necessary to the public interest” and is not likely to be given without an immunity grant. Id. Therefore, appellant argues, the same restrictions that govern step three in the process must apply to the first step as well.

We do not concur in this reasoning. The statute says nothing about how Department of Justice approval— admittedly present here — must be obtained. In the absence of specific contrary language, we see no reason why the request to the Attorney General cannot be made by an authorized agent other than the United States Attorney — in this instance, the Special Attorney. Congressional concern over the process would appear satisfied if, as was the ease here, both the Attorney General or his statutory designate and the United States Attorney agree on the desirability of immunity before a court actually grants it. We do not suggest, however, that it is sound policy for even the first step to be taken without the knowledge and concurrence of the United States Attorney. Chief Judge Mishler properly emphasized

the difficulty we have in having two law enforcement agencies in the district, one strike force and the other the United States Attorney

He further remarked:

I pointed up the problem that we have in having the Strike Force make applications in the name of the United States Attorney when the United States Attorney has no supervision or jurisdiction or very little. That’s another problem. You might point that up to the Attorney General.

Nevertheless, these are questions of proper administration and do not affect the statutory requirement.

We believe' that this substantially disposes of the appeal. While appellant tells us that the United States Attorney was ignorant of the application to the district court for an order immunizing Di Bella — what we have called step three — the point is not emphasized. The obvious reason is that the nunc pro tunc proceeding, sensibly initiated by Judge Mishler, at which the United States Attorney appeared and signed the necessary papers, honored the apparent mandate of the statute. Cf. United States v. Giordano, supra note 3, at 1177, 94 S.Ct. at 1830 n.12. On the other hand, the Special Attorney presses this issue, claiming that even at this last stage the approval and participation of the United States Attorney is not required. Strictly speaking, the question is not before us because the United States Attorney, as indicated, did approve and sign the application for an order, albeit belatedly. But in the exercise of our supervisory power over a procedure that will obviously recur, we note that the wiser course in the future would be to directly involve the United States Attorney in the application to a district court for an immunity order.

Having found that the immunity order was in all respects properly procured, we affirm the judgment of contempt entered upon Di Bella’s failure to obey the court’s command to answer the prosecutor’s questions.

      . 28 U.SlC. § 1826(b) reads in pertinent part: “Any appeal from an order of confinement under this section shall be disposed of as soon as practicable, but not later than thirty days from the filing of such appeal.”

      . 18 U.S.C. § 6002 provides :
      Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to—
      (1) a court or grand jury of the United States,
      (2) an agency of the United States, or
      (3) either House of Congress, a joint committee of the two Houses, or a committee or subcommittee of either House, and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination ; but no testimony or other information compelled under the order (or any information directly or indirectly derived from sucli testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury/ giving a false statement, or otherwise failing to comply with the order.
      18 U.S.C. § 6003 provides :
      (a) In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court of the United States or a grand jury of the United States, the United States district court for the judicial district in which the proceeding is or may be held shall issue, in accordance with subsection (b) of this section, upon the request of the United States attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this part.
      (b) A United States attorney may, with the approval of the Attorney General, the Deputy Attorney General, or any designated Assistant Attorney General, request an order under subsection (a) of this section when in his judgment—
      (1) the testimony or other information from such individual may be necessary to the public interest; and
      (2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.

      . In his reply brief, appellant makes an argument not addressed to the court below; i.e., that the Regulations of the Department of Justice support his position. 28 C.F.R. § 0.175. Although long-standing administrative interpretation of a statute is entitled to weight, Brennan v. OSHRC (Gerosa), 491 F.2d 1340, 1344 (2d Cir. 1974), we put to one side the length of time that this regulation has been in effect since we do not find it dispositive.
      Appellant also relies on the recent case of United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), which strictly construed the requirement of 18 U. S.C. § 2516(1), requiring that applications for electronic surveillance be approved by the Attorney General or his specific designate. This decision is not really in point, however, since it deals with a procedure analogous to our step two, supra, compliance with which is not at issue here.

      . We were told at oral argument that the failure of communication here was due to recent changes in top personnel in the strike Force and the United States Attorney’s office.


author: DURFEE, Senior Judge.

text:
    Doris J. MIKEL, Plaintiff-Appellant, v. Robert S. KERR, Jr., et al., Defendants-Appellees.
    Nos. 73-1665, 73-1776.
    United States Court of Appeals, Tenth Circuit.
    July 19, 1974.

      H. Clay Robinson of Pearce, Robinson & McCord, Fort Smith, Ark., for appellant.
    Larry D. Patton of Tomerlin, High & Patton, Oklahoma City, Okl. (E. Norton Burbage, of Kerr, Davis, Irvine, Burbage & Green, Inc., Oklahoma City, Okl., on the brief), for appellees.
    Before LEWIS, Chief Judge, DURFEE, Senior Judge, and BARRETT, Circuit Judge.

       Honorable James It. Durfee, Senior Judge, United States Court of Claims, sitting by designation.

   DURFEE, Senior Judge.

This action was instituted to quiet title in a certain tract of land which lies at the confluence of the Arkansas and Poteau Rivers in Le Flore County, Oklahoma. Plaintiff, Doris J. Mikel, appeals from the District Court’s entry of summary judgment in favor of defendants; she also appeals from the court’s order taxing certain costs against her, in the amount of $389.00. These two separately-docketed appeals have been consolidated herein for the purposes of our review.

I

At the time of the United States Geological Survey of 1898, the property of defendants’ predecessors in title was riparian to the Arkansas River. Subsequently, due to the gradual movement of the river, portions of the land were washed away or submerged, so that property presently owned by plaintiff came to border on the river. Still later, the river gradually receded in the direction from whence it had come, moving back to its 1898 position, and somewhat beyond. That portion of the Arkansas River adjacent to the property in question is navigable. Plaintiff claims title, by way of accretion, to the tract of land uncovered by the receding river; defendants claim the restored land as holders of record title, and they claim the land uncovered beyond the original boundaries of their property by way of accretion.

Upon the foregoing facts, the District Court held that, in Oklahoma, when riparian land reappears through reversal of the movement of a river, after having been inundated, ownership is restored in the record title holder of the land if its boundaries can be identified; accordingly, the court entered judgment for defendants.

The issue on appeal may therefore be clearly posed: when real property which is riparian and possessed of identifiable boundaries is submerged by the gradual movement of a river, and is then subsequently restored by the gradual recession of that river, does title to such property remain in the owner of record title, or does it vest, pursuant to the law of accretion, in an adjacent owner whose land was not originally riparian, but became riparian by the river’s gradual movement?

A review of Oklahoma law on this issue establishes that the District Court was correct in holding that title to such reappearing land remained in the holder of record title, and therefore, that defendants were entitled to judgment.

The Oklahoma Supreme Court first addressed the issue herein presented in the case of Hunzicker v. Kleeden, 161 Okl. 102, 17 P.2d 384, 385 (1932), where it stated:

* * * plaintiffs contend that, since the river by erosion cut away defendants’ land and reached plaintiffs’ land, and thereafter cut away a portion of plaintiffs’ land so that plaintiffs were the riparian owners, then plaintiffs acquired the riparian rights to the river bed as against defendants, when the river receded.
Upon this proposition of law there is a sharp conflict of the authorities. The courts of Connecticut and Kansas hold to the view contended for by plaintiffs, but, on the other hand, a number of our courts have held the contrary view, which is that, where the land of defendants is riparian property, and is gradually washed away by the stream, so that plaintiffs’ land becomes riparian property, and that thereafter the stream recedes, then plaintiffs acquire only that portion of land which they had prior to said erosion by the stream, and defendants acquire such property as they had prior to the same being eroded away by said stream.
We believe that the latter view is the more equitable and better view, where the boundaries are capable of determination. * * *

The Oklahoma Court was called upon to resolve the same issue in Mapes v. Neustadt, 197 Okl. 585, 173 P.2d 442 (1946). In that case, the initial movement of the river was by avulsion, followed by a gradual recession of the river and consequent reappearance of the submerged property. Defendant in Mapes, the original owner of the property before it was submerged by the movement of the river, relied upon the equitable principles applied in Hunzicker, supra, and upon his ability to identify his land by Government plat and survey. The Oklahoma Court agreed with defendant that Hunzicker was controlling, and it rejected plaintiffs’ claim, by way of accretion, to the restored land.

The Oklahoma Supreme Court once again reaffirmed its Hunzicker rule of reappearing riparian land in the case of Ford v. Harris, 383 P.2d 21 (Okl.1963). The facts in that case were identical to those in the case at bar in that the course of the stream gradually passed over all of defendant’s land, and plaintiff’s land then became riparian, and that after the gradual return of the course of the stream, defendant’s land boundary was4j capable of determination. The court held, on the basis of Hunzicker, supra, that defendant continued to retain title to the reappearing land.

Plaintiff urges us to reject defendants’ reliance upon the foregoing authority; she asks us to distinguish those cases on the basis of arguments hereinafter considered.

Plaintiff first attempts to bring the instant case outside the scope of Hunzicker’s application by arguing that Hunzicker and its progeny apply only in situations where a river has moved by avulsion. She contends that where the movement of the river is gradual, as in the instant case, the law of accretion, as codified in 60 O.S. § 335, and the Oklahoma decision in Goins v. Merryman, 183 Okl. 155, 80 P.2d 268 (1938), are dispositive.

We are not persuaded that the rule of reappearing riparian land, as enunciated in Hunzicker, supra, is limited to cases where a river changes course by avulsion. The holding in Hunzicker embodies no such limitation. While the syllabus of the court speaks of the subsequent movement of the river therein involved as an “abandonment of the channel,” a term usually used to denote avulsion, the text of' the court’s decision makes it clear that the rule therein announced applies whenever a river subsequently “recedes,” uncovering land which was formerly riparian. Indeed, an examination of the authority relied upon and cited by the Hunzicker court establishes that Oklahoma embraced the rule that whenever riparian land reappears through a subsequent change in the course of a river, either by avulsion or by a river’s gradual movement, ownership to the reappearing land, if it can be identified, is vested in the record title holder. See Allard v. Curran, 41 S.D. 73, 168 N.W. 761 (1918) and Keel v. Sutton, 142 Tenn. 341, 219 S.W. 351 (1920) (and cases cited therein), cited by the Hunzicker court, wherein the adopted rule is applied in instances of gradual reversal of a river’s course; and see Stockley v. Cissna, 119 F. 812 (6th Cir. 1902), cited by the Hunzicker court, wherein the adopted rule is applied in instances of avulsion. This Circuit Court has recognized the Hunzicker rule as broader than the would-be rule espoused by plaintiff. In Herron v. Choctaw and Chickasaw Nations, 228 F.2d 830, 832 (10th Cir. 1956), it was stated:

* * * Whatever the rule may be elsewhere, it is the law in Oklahoma that where because of inroads of a river riparian land is lost by erosion or becoming submerged but through subsequent change in the course of the river the water disappears and the land reappears, and the boundaries are susceptible of being definitely identified, title to the restored land is vested in the owner of the fee at the time the erosion or submerging occurred. Hunzicker v. Kleeden, 161 Okl. 102, 17 P.2d 384; Mapes v. Neustadt, 197 Okl. 585, 173 P.2d 442. The latter case was one involving avulsion of a river, but the general rule applicable to cases involving erosion or submerging of land was clearly recognized with unqualified approval.

Furthermore, and perhaps most significantly, plaintiff proffers no satisfactory reconciliation of her interpretation of the Hunzicker rule and the Oklahoma Supreme Court decision in Ford v. Harris, supra. In Ford, as in the case at bar, the river gradually passed over all of defendant’s .land, plaintiff’s land then becoming riparian, and there followed a gradual return of the course of the stream, with the consequent uncovering of defendant’s land. The Oklahoma Court there held that the Hunzicker case was dispositive of the issue before it.

Plaintiff’s reliance upon Oklahoma’s law of accretion, 60 O.S. § 335, and the case of Goins v. Merryman, supra, is misplaced. Oklahoma has chosen not to apply its accretion statute to factual situations like the one before us. An examination of the Goins case reveals that the court therein based its decision upon facts which are completely different from those in the instant case; Goins is not applicable to the issue herein presented.

Plaintiff next asserts that a distinction is to be drawn on the basis of whether the river involved is navigable or non-navigable. According to plaintiff’s theory, the application of the Hunzicker rule of reappearing riparian land is predicated upon the wow-navigability of the river in question. She argues that since the Arkansas River is navigable where it is adjacent to the property here involved, Hunzicker does not apply.

The navigability of a waterway may be an important factor as far as certain rights of riparian owners are concerned. See, e. g., United States v. Rands, 389 U.S. 121, 88 S.Ct. 265, 19 L.Ed.2d 329 (1967). We do not think, however, that it is a factor which is dispositive of the issue before us. The rule announced in Hunzicker was that riparian land lost by erosion or submergence is regained to the original owner when the land reappears due to the subsequent movement of the river. The Oklahoma Court believed this to be the more equitable and better view where the land boundaries are capable of determination. It is apparent that the Hunzicker court did not consider a river’s non-navigability to be a prerequisite to application of the stated rule. In fact, while the court adopted and applied the stated rule to the facts before it, where the river was non-navigable, it pointed out that the caselaw in other states for and against the adopted rule dealt with navigable streams. The court relied upon, as authority, said case-law supportive of the rule, and quoted therefrom with unqualified approval. The court in Hunzicker did state, by way of “further observation,” that the river therein involved was non-navigable, but it did so only to establish the basis for an additional theory upon which to rest the result reached in the case. The court reasoned that because the bed of a non-navigable river belongs to the riparian owner, it followed that, where a portion of the riparian owner’s land is eroded away or submerged, his title to said land continued to exist so long as any portion of that part of the land continued to exist as part of the river bed, so that when the river subsequently receded, the riparian owner still holds title to the restored land. The Oklahoma Court did not intend, as we read this part of its opinion, to thereby limit the application of its adopted rule of reappearing riparian land to situations where a river’s non-navigability is established. This conclusion is persuasively supported by the fact that neither of the subsequent Oklahoma cases applying the rule adopted in Hunzicker mention whether the rivers involved were navigable or non-navigable. See Mapes v. Neustadt, supra; Ford v. Harris, supra. Moreover, this Circuit Court did not consider as relevant the navigability vel non ol the river in question in Herron, supra, where we disposed of the issue presented on the basis of Hunzicker, and Mapes.

In summary, where, due to the gradual movement of the Arkansas River, portions of defendants’ land were washed away or submerged, so that plaintiff’s property came to border on the river, and where the river later gradually reversed its course and moved in the direction from which it had come, title to the restored land remained with defendants where the boundaries to such land are capable of determination. Furthermore, as between plaintiff and defendants, the land uncovered beyond the original boundaries of defendants' property belongs to defendants as accretion to their property. Accordingly, plaintiff’s claim to the land in question, by way of accretion, must be rejected. Hunzicker and its progeny demand this result.

II

Plaintiff also appeals from the District Court’s order taxing certain costs against her, in the amount of $389.00. The costs in controversy relate to expenses incurred by defendants in the preparation of exhibit “C”, an attachment to the parties’ stipulation of facts. The exhibit is a plat of the United States Geological Survey, dated November 2, 1898, which correctly reflects the location of the Arkansas River in relation to the real property which is at issue in this lawsuit. Plaintiff’s objection to paying the costs of preparing said exhibit is that it was not used by the trial court in making its decision.

The reasonable cost of preparing maps, charts, graphs and kindred material is taxable, pursuant to 28 U.S. C. § 1920, when necessarily obtained for use in the case. Advance Business Systems & Supply Co. v. SCM Corp., 287 F.Supp. 143 (D.Md.1968), aff’d and remanded on other grounds 415 F.2d 55 (4th Cir. 1969), cert. denied 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 101 (1970). Whether an item is necessarily obtained for use in a case so that expense therefore may be taxed as a cost calls for a factual evaluation, a task which is committed to the discretion of the trial court. See United States v. Kolesar, 313 F.2d 835 (5th Cir. 1963).

After the demise of District Judge Edwin Langley, who had entered summary judgment for defendants, the task of determining whether the exhibit in question was necessarily obtained for use in the case fell upon District Judge Fred Daugherty. Judge Daugherty found that the exhibit in question was made a part of the parties’ stipulation of facts, upon which Judge Langley entered summary judgment; that the exhibit was a result of defendants’ expenditures or fees for exemplification and copies of papers which they request to be taxed as costs; that the aerial photograph for which fees are claimed by defendants is a part of the exhibit as is other material obtained by defendants for which fees are claimed; that time consumed in obtaining the necessray aerial photos and other material and causing them to be put together to illustrate the location of the Arkansas River in relation to the real property in dispute appeared to be a reasonable and a proper charge for costs under 28 U.S.C. § 1920(4); and that Judge Langley refers to this exhibit and material in his Memorandum of Decision. The District Court found and concluded that this exhibit was necessarily obtained for use in the case, was in fact used, and that the fees for such exemplification and copies of papers were taxable as costs under 28 U.S.C. § 1920(4). We are unable to conclude, in view of these circumstances, that the District Court abused its discretion in allowing the taxation of these costs, in the amount of $389.00, against plaintiff.

The judgment of the District Court is affirmed.

      . Avulsion is defined as “[»] sudden and rapid change in the course and channel of a boundary river. Conkey v. Knudsen, 143 Neb. 5, 8 N.W.2d 538, 542.” [Emphasis added]. Blacks Law Dictionary 173 (4th ed. 1951).