author: FEINBERG, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Ronald Thomas BOHLE, Appellant.
    No. 645, Docket 72-1868.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 23, 1973.
    Decided March 20, 1973.

      Sarah W. Salter, Syracuse, N. Y. (Anthony E. Battelle, Syracuse, N. Y., on the brief), for appellant.
    Robert E. Wildridge, Asst. U. S. Atty. (James M. Sullivan, Jr., U. S. Atty., N.D.N.Y., Gustave J. DiBianco, Asst. U. S. Atty., on the brief), for appellee.
    Before FEINBERG, MULLIGAN, and TIMBERS, Circuit Judges.
   FEINBERG, Circuit Judge:

In January 1969, Ronald Thomas Bohle, a young man of 22, hijacked an Eastern Airlines plane then enroute from Miami, Florida to Nassau, Bahamas and diverted it to Cuba. It is not clear from the record what transpired after that, but Bohle was eventually apprehended in November 1969 when entering the United States (in the Northern District of New York) from Canada. Despite a defense of insanity, Bohle was convicted after a jury trial in the United States District Court for the Northern District of Indiana, the state of his residence, for the crime of aircraft piracy, 49 U.S.C. § 1472(i). However, the conviction was reversed by the Court of Appeals for the Seventh Circuit because of various errors in the conduct of the trial, 445 F.2d 54 (1971), and the case was remanded for a new trial. The Government apparently then concluded that venue might be more appropriate in the Noi’thern District of New York under 49 U.S.C. § 1473(a), see 445 F.2d at 58-60, and a second jury trial was held in that district before Lloyd F. MacMahon, J., sitting by designation. Bohle was again convicted, and received a mandatory minimum sentence of 20 years imprisonment. On this second appeal, we find no error and affirm the judgment of conviction.

I

At trial, appellant stipulated to all elements of the offense except his criminal responsibility at the time of the crime. The defense again sought to establish that Bohle was legally insane under the definition of criminal responsibility we adopted in United States v. Freeman, 357 F.2d 606, 622 (2d Cir. 1966):

A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.

On appeal, Bohle argues that the Government’s proof of sanity was insufficient as a matter of law to sustain its burden of proving criminal responsibility beyond a reasonable doubt. We disagree.

To be sure, the defense presented substantial evidence of insanity. Lay testimony, from which experts later drew factual data, established that at the time of the crime Bohle was a disturbed individual by any measure, maladjusted in high school and in the military and unsuccessful in personal relationships. There was also testimony from defense experts — two psychiatrists (the conclusions of a third were stipulated into the record), one doctor of osteopathy with five years of psychiatric practice and a clinical psychologist. Bohle was diagnosed with varying degrees of certitude as suffering from “schizophrenia, paranoid type” and subject to anxiety and psychotic episode when under stress; his thought processes were characterized as largely divorced from reality, “delusional.” Three of the doctors categorically stated that Bohle was not legally sane at the time of the crime.

Quoting Dusky v. United States, 295 F.2d 743, 754 (8th Cir. 1961) (Blackmun, J.), cert. denied, 368 U.S. 998, 82 S.Ct. 625, 7 L.Ed.2d 536 (1962), appellant argues that

the nature and quantum of the evidence which the government must produce to meet its burden so as to justify the submission of the insanity issue to the jury varies with the nature and quantum of the evidence indicating mental illness.

Accord, Brown v. United States, 351 F.2d 473, 474 (5th Cir. 1965); Wright v. United States, 102 U.S.App.D.C. 36, 250 F.2d 4, 7 (1957). Even so, the Government’s evidence was adequate to withstand a motion for acquittal. There was testimony of passengers and airline personnel from which the jury could infer that Bohle’s actions and reactions during the hijacking, as described by the witnesses, were not those of an individual detached from reality. We do not say that this would have been sufficient standing alone, but the prosecution also offered further testimony. Its clinical psychologist testified in substance that appellant’s response to certain tests administered after the offense were within the range of normal. More significantly, a psychiatrist characterized appellant as having “a psychopathic personality, sociopathic features”' — a personality disorder — but concluded that he had no mental disease or defect. Appellant attacks the psychiatrist’s testimony on various grounds. However, the doctor’s limited opportunity to observe appellant (the course of an afternoon), though not ideal, cf. United States v. Freeman, supra, 357 F.2d at 623 n. 53, was adequate; incidents culled by the doctor from appellant’s history and used to substantiate his diagnosis were sufficient in number and probative value. The alleged shortcomings in this doctor’s testimony as compared to that of the various defense witnesses were at most matters of weight and credibility for the jury, whose role is to resolve “battles of experts” testifying as to insanity. See, e. g., Washington v. United States, 129 U.S.App.D.C. 29, 390 F.2d 444, 445-446 (1967); cf. Blocker v. United States, 110 U.S.App.D.C. 41, 288 F.2d 853, 862-864 (1961) (Burger, J., concurring).

From all of the evidence, reasonable men could infer either that Bohle was schizophrenic and delusionally fleeing from reality, as the defense contended, or that he was merely mentally unstable and rationally fleeing from responsibility, as the prosecution argued. Therefore, under the legal doctrines now in effect, that question was for the jury as part of the process of guilt determination. Whether that is the best of all possible procedures is an issue we do not intend to raise here, although as to this also reasonable men can and do differ. We reject appellant’s assertion that where facts equally support inferences of guilt beyond a reasonable doubt or innocence, the court must direct acquittal. See United States v. Taylor, 464 F.2d 240, 243-245 (2d Cir. 1972). While the issue of insanity was a close one, the jury could properly conclude that Bohle was sane beyond a reasonable doubt when he unlawfully seized the aircraft.

II

Appellant has two further contentions. At the second trial, he elected not to testify in his own behalf. At his first trial, however, he had testified. Over objection, this former testimony was admitted in evidence at the second trial. Appellant recognizes the general rule that “a defendant’s testimony at a former trial is admissible in evidence against him in later proceedings,” Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008, 2010, 20 L.Ed.2d 1047 (1968); but he contends that the general rule is inapplicable here on two grounds. He first argues that any probative value of the former testimony was far outweighed by its prejudicial effect. But Bohle’s recollection of his state of mind during the hijacking bore directly on the issue of sanity. Moreover, the evidence was not prejudicial in the technical sense of introducing evidence of other crimes or of extraneous inflammatory matters, although it may well have assisted the Government’s case, see United States v. Overton, 470 F.2d 761, 767 (2d Cir. 1972). Nor are we persuaded by appellant’s second argument against admissibility. On appeal from Bohle’s first conviction, the testimony of a psychiatrist testifying for the prosecution was held inadmissible because “the results of a test on which the doctor had in part based his opinion had not been formulated by the doctor but by someone else who was not in court. . ” United States v. Bohle, supra, 445 F.2d at 69. Appellant relies on Harrison v. United States, supra, in which the Supreme Court upset a conviction where first-trial testimony of a defendant, given after the Government’s introduction of confessions subsequently held unlawful on appeal, was introduced at a second trial following remand. Bohle asserts that his first-trial testimony should similarly have been excluded at his second trial. The argument is flawed. Harrison involved defendant testimony “impelled” by introduction of illegal confessions and thus inadmissible as “fruit of the poisonous tree.” We see no reason to extend the “fruits” doctrine to testimony “impelled” by mere evidentiary hearsay error, as distinct from unconstitutional police practices. Moreover, the Government says that Bohle testified at the first trial before its psychiatrist took the stand; the assertion has not been contradicted by appellant in a reply brief or at oral argument. Even if Harrison applies, therefore, the Government has met its burden of showing “that its illegal action did not induce [defendant’s] testimony.” 392 U.S. at 225, 88 S.Ct. at 2011.

Finally, appellant argues that the trial judge erred on the last day of trial in disposing of a request for a voir dire to determine whether any juror had, during the overnight recess, heard or read anything prejudicial — apparently an unrelated skyjacking had been widely reported in the media. The request was made by the Government and apparently joined in by the defense. The trial judge was concerned, among other things, that a juror’s overly detailed response might needlessly insert prejudice where none had genuinely existed before. In the colloquy at the bench, defense counsel requested the court “to ask a simple question if they have read anything on this, period, without referring to anything?” The judge then put the general question set forth in the margin. When there was no affirmative response from the jurors, the judge allowed the trial to proceed, and defense counsel offered no objection. On this record, the judge acted within his discretion; we perceive no error, much less plain error. See United States v. Ragland, 375 F.2d 471, 475-476 (2d Cir. 1967), cert. denied, 390 U.S. 925, 88 S.Ct. 860, 19 L.Ed.2d 987 (1968).

Judgment affirmed.

      . 49 U.S.C. § 1472(i) (1) (A) allows a jury to impose the death penalty. In United States v. Bohle, 346 F.Supp. 577 (N.D.N.Y.1972), Judge MacMahon held this part of the statute unconstitutional. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

      . One of the defense psychiatrists was originally retained by the Government as its expert. Defense counsel brought this fact to the attention of the jury in his opening and in summation; the judge referred to it in his charge; and the jury was perfectly capable of drawing any appropriate inferences as to the consequent weight of his testimony. Thus, although appellant complains that the doctor’s testimony as to how he came into the case was improperly stricken, the claim is without substantial merit.

      . See generally United States v. Chandler, 393 F.2d 920, 928 (4th Cir. 1968) (en banc); Wion v. United States, 325 F.2d 420, 428 & n. 10 (10th Cir. 1963) (en banc), cert. denied, 377 U.S. 946, 84 S.Ct. 1354, 12 L.Ed.2d 309 (1964). See also Burger, Psychiatrists, Lawyers, and the Courts, Federal Probation 3, 9 (June 1964). But cf. A. Goldstein, The Insanity Defense 220-26 (1967).

      . Appellant’s excellent brief cites some 18 cases in which convictions have been reversed for insufficient evidence of sanity. However, as the Court of Appeals for the Fifth Circuit observed when nine of those cases were cited to it, “each holds no more than that upon particular facts in that case . . . the government had failed to discharge its burden of proving . . . sanity. . . . ” Mims v. United States, 375 F.2d 135, 147 (1967).

      . Appellant also asks us to reexamine the logic of the general rule. Because the Supreme Court in Harrison explicitly refused to question the rule, we decline the invitation.

      . The same psychiatrist testified for the Government in the second trial. On this appeal no similar objection is made to his testimony.

      . The judge had reminded the jurors the day before:
      Don’t read anything about [the ease]. Don’t watch anything on television about it.

      . THE COURT: Have any of you read anything on the subject of hijacking, or seen anything on television or heard anything on the radio about this case which would in any way change any of the'answers that you gave me at the time you were selected to sit as jurors in this case, which would in any way influence your opinion one way or the other in this case?


source: Caselaw Access Project

author: MULLIGAN, Circuit Judge:

license: Public Domain

text:
    Alfred ALTMAN and Irene Altman, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 587, Docket 72-1950.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 29, 1973.
    Decided March 8, 1973.

      Samuel N. Greenspoon, New York City (Harry Simon, New York City, of counsel), for petitioners-appellants.
    Louis A. Bradbury, Atty., Tax Division, Department of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., and Meyer Rothwacks and Richard W. Perkins, Attys., Tax Division, Department of Justice, Washington, D. C., of counsel), for respondentappellee.
    Before FRIENDLY, Chief Judge, and ANDERSON and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

This is an appeal by the petitioners from a decision of the Tax Court, Hon. Irene F. Scott, 31 CCH Tax Ct.Mem. 91, entered on April 28, 1972, holding that the petitioners had unreported taxable income for the year 1964 in the amount of $122,535.36 and determined a tax deficiency in the amount of $77,890.37. We affirm.

The first question to be determined upon appeal is whether the Tax Court properly decided that the $122,535.36 received by the taxpayer Alfred Altman (Alfred) from his mother Charlotte Altman (Charlotte) on December 15, 1964 was includable in his gross income or was exempt from taxation as a gift. There is no question but that the taxpayer received checks and securities totalling $122,535.36 from his mother on that date; that it was not reported as income in the 1964 joint return of Alfred and his wife Irene Altman (Irene) and that its exclusion is sought to be justified solely on the ground that it constituted a gift (Int. Rev.Code of 1954, § 102).

The burden of proving that the transfer of the securities and cash here involved constituted a gift, is upon the taxpayer. Gaugler v. United States, 312 F.2d 681, 684 (2d Cir. 1963). Moreover the crucial test for determining whether or not there was a gift, is the intention with which the transfer of the property was made. This is a question of fact to be determined under all the circumstances with primary weight being accorded to the conclusions of the trier of fact. Commissioner v. Duberstein, 363 U.S. 278, 286-290, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Comtel Corp. v. Commissioner, 376 F.2d 791, 795 (2d Cir.), cert. denied, 389 U.S. 929, 88 S.Ct. 290, 19 L.Ed.2d 280 (1967). In light of these principles, we have no difficulty in finding that the determination made below was not clearly erroneous.

Charlotte inherited from her husband all of his interest in the family baking business which was managed by her son Alfred after his father’s death in 1963. The primary evidence of Charlotte’s do-native intent was the testimony of Irene that at about 11 A.M. on the morning of December 15, 1964, Alfred and Charlotte came to Alfred’s home where Charlotte then announced that since Alfred had been such a good son, she had made him a gift of the funds in question. The four bank checks shown to Irene totalled $62,007.86 representing withdrawals from four local banks. All four checks were made out to Alfred and were in Irene’s presence delivered to him by his mother. Charlotte then took securities from her handbag, showed the certificates to Irene, signed the backs of them and delivered them to Alfred. The next day Alfred deposited to his bank account the four checks and delivered the stock certificates to his broker. There was further evidence by Irene purporting to establish that the relationship between Charlotte and Alfred and herself was not only amicable on that day but on the next day as well.

The court below found the testimony of Irene “totally unpersuasive.” Moreover, the court indicated that even if the events testified to by Irene were factually accurate, if Alfred had in fact frightened and intimidated his mother earlier that morning, she would likely have still been under his influence so that there was no true donative intent on her part. The court indicated that the crucial factual question was what happened earlier on the morning of December 15, 1964.

There was other evidence before the court which would indicate that Charlotte’s gift to Alfred was prompted by something less than maternal affection. Leon Miller, who had represented the Altman family business, testified that on December 17th Charlotte advised him that on the morning of December 15, 1964 Alfred had come to her apartment and persuaded her to open her safe on a pretext. He then threatened to throw the family business into bankruptcy and report her to the Internal Revenue Service for alleged violations. He took possession of her bank books, stock certificates and forced her to go with him to various banks and withdraw the proceeds as well as to endorse the securities. On December 18th Charlotte, Adele (Alfred’s sister) and Miller visited an assistant district attorney in New York County to bring criminal charges but were advised to seek civil redress. On December 30, 1964 Charlotte commenced a civil action in the New York Supreme Court seeking to regain possession of her property. A non-jury trial was held on April 26, 1966 and judgment was rendered on July 15, 1966. Justice Harry B. Frank wrote an eight page unreported opinion in which he essentially found that Alfred had converted the securities and cash here in question, as well as other personal property not here pertinent. The judgment directed Alfred to return all of this property, granted an accounting and awarded punitive damages in the sum of $10,000. In his opinion Justice Frank found no basis for finding that Charlotte intended any gift to Alfred but rather that the transfer was prompted by her fear of possible exposure to tax liability and of the ruination of the family business. His opinion castigated Alfred in strong terms.

Appellants now urge that the admission below of the Supreme Court file in the civil action brought by Charlotte against Alfred constitutes error. It is argued that under Rule 14(b) of the Rules of Practice of the Tax Court the Commissioner should have pleaded collateral estoppel in his answer if the New York judgment was to be utilized for that purpose. Although the admission of the judgment and file below was objected to, the objection of counsel was not directed to the rule. In fact, as appellants admit in their brief, the lower court did not accept the New York judgment as conclusive under the doctrine of res judicata either as a bar or a collateral estoppel. It was admitted as evidence of its contents. If error was committed in receiving it in evidence we consider it harmless since in any event there was other ample competent evidence dehors the judgment to indicate that the transfer here was involuntary. Irene admitted on cross-examination that she knew that Alfred had a date to meet Charlotte on the morning of December 15th; that her mother-in-law Charlotte subsequently started a civil action in New York to recover the property; that she (Irene) had testified in the case; that Alfred had failed to testify although he was available and knew of the pendency of the action; that Charlotte testified in the proceeding and that she had won the case. Alfred’s failure to appear to testify either in the civil action or in the tax proceeding below is indeed significant. We are not impressed with the appellants’ argument that the court should have given significance to the failure of the Commissioner to call Charlotte as a witness. She is an octogenerian living in a nursing home. Since the burden of proof is on the taxpayer to establish do-native intent, there was more reason for the taxpayer to call her if her testimony was favorable to the present claim.

An examination of Irene’s testimony on cross-examination which was at best evasive in contrast to her sharp recollection of the events of December 15, 1964, confirms the trial court’s judgment as to her credibility.

While we can agree with the appellants that Charlotte did transfer her money and securities to Alfred so that the mechanical requisites of a gift were established and in fact are not in issue, there was an abject failure to establish donative intent. There is no question but that Adele and Miller were hostile to Alfred but this is no proof that the New York lawsuit was a scheme or plot on their part to defraud Alfred who has in fact fled to Australia where he remains leaving only an unsatisfied judgment behind. Their disaffection is perhaps understandable.

The only remaining question is whether Irene who filed a joint return with Alfred in 1964 and is therefore liable for the tax deficiency, is entitled to avoid the joint liability under the provisions of section 6013(e) of the Internal Revenue Code of 1954 as amended. Under this section the spouse is relieved of liability if certain conditions are met. The first is that there has been an omission from gross income properly includable in the return in excess of 25 percent of the gross income stated in the return. This is conceded by the Commissioner. A second requirement (§ 6013(e)(1) (B)) is that the spouse establish that in signing the return she did not know and had no reason to know of the omission. The income tax return which was an exhibit in the proceeding below was executed by Irene on April 14, 1965 and reported a total joint income of $38,334.32. There can be no doubt but that the receipt of cash and securities valued at $122,535.36, more than three times the amount of income reported, was a significant omission from the return. There is no question but that Irene was aware of the receipt of the funds. She testified in detail as to time, place and manner of delivery. Her only claim now is that she believed they were a gift and therefore not income. As we have indicated this is hardly credible in view of the evidence to the contrary. We cannot accept the proposition that Irene had no reason to know that the money and securities received here were not gifts. The civil action to recoup them on the theory that there was a conversion had been commenced in December, 1964. A preliminary injunction restraining Alfred from selling, assigning, pledging or otherwise disposing of the securities or funds was filed on February 17, 1965. Irene was hardly an unsuspecting spouse without reason to understand that her husband had received substantial unreported income. We find that she has failed to sustain the burden imposed by section 6013(e)(1)(B) and to establish that she was the “wholly innocent spouse” that the statute was designed to succor. See S.Rep.No. 91-1537, 91st Cong., 2d Sess., in 1970 U.S.Code, Cong. & Ad.News, pp. 6089, 6090-91.

Affirmed.

      . The securities totalling in value $60,527.50 included 200 shares of Ekco Products, Inc., 100 shares of General Motors Corp., 100 shares of Stattuck Co. and 630 shares of American Telephone and Telegraph Co.

      . While a majority of courts will not admit into evidence a judgment in another action (5 J. Wigmore, Evidence 1671(a) (3d ed. 1940)) there is a growing tendency to admit prior criminal convictions in subsequent civil actions involving the same transaction. See C. McCormick, Law of Evidence § 318 (2d ed. E. Cleary 1972). See also Matter of Rechtschaffen, 278 N.Y. 336, 16 N.E.2d 357 (1938); Comment, 30 Fordhnm L.Rev. 786 (1962).

      . 26 U.S.C. § 6013(e) (1970) provides:
      (1) In general.
      Under regulations prescribed by the Secretary or his delegate, if—
      (A) a joint return has been made under this section for a taxable year and on such return there was omitted from gross income an amount properly includable therein which is attributable to one spouse and which is in excess of 25 percent of the amount of gross income stated in the return,
      (B) the other spouse establishes that in signing the return he or she did not know of, and had no reason to know of, such omission, and
      (C) taking into account whether or not the other spouse significantly benefited directly or indirectly from the items omitted from gross income and taking into account all other facts and circumstances, it is inequitable to hold the other spouse liable for the deficiency in tax for such taxable year attributable to such omission, then the other spouse shall be relieved of liability for tax (including interest, penalties, and other amounts) for such taxable year to the extent that such liability is attributable to such omission from gross income.
      (2) Special rules.
      For purposes of paragraph (1)—
      (A) the determination of the spouse to whom items of gross income (other than gross income from property) are attributable shall be made without regard to community property laws, and (B) the amount omitted from gross income shall be determined in the manner provided by section 6501(e)(1)(A).


author: PER CURIAM.

text:
    Park ANDERSON, Warden, Oklahoma State Penitentiary, the State of Oklahoma, Appellant, v. Henry Edward WATT, Appellee.
    No. 72-1666.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Feb. 20, 1973.
    Decided March 19, 1973.
    Paul Crowe, Asst. Atty. Gen. (Larry Derryberry, Atty. Gen. of Oklahoma, with him on the brief), for appellant.
    James Goteher, McAlester, Okl., for appellee.
    Before SETH, McWILLIAMS, and BARRETT, Circuit Judges.
   PER CURIAM.

The appellee, Henry Edward Watt, was tried in the Oklahoma state courts in 1967 for the “Illegal Sale of Marihuana After a Former Conviction of a Felony.” He was found guilty by the jury and also sentenced by the jury. The sentence was for thirty-seven years pursuant to the state habitual criminal act. The record showed that defendant had sold five penny matchboxes of marihuana. At the time the information for this offense was filed, he was in the Oklahoma County Jail on an eighteen-month sentence following a guilty plea to the charge of receiving a stolen credit card.

Appellee’s conviction on the marihuana charge was appealed to the Oklahoma Court of Criminal Appeals where it was affirmed. Okl.Cr., 450 P.2d 227.

Watt also sought a writ of habeas corpus in the Oklahoma Court of Criminal Appeals, which was denied. He then petitioned the United States District Court for the Eastern District of Oklahoma for a writ of habeas corpus. His petition was denied and he appealed to this court. This court remanded the case to the District Court for an evidentiary hearing on the issue of whether Watt had a deliberate purpose in appearing before the jury in jail coveralls with the words, “Oklahoma County Jail 44” stenciled in large letters across the back; also, if no such purpose was found, if the District Court could find, under Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), that beyond a reasonable doubt appellee’s right to a fair trial was not prejudiced by his appearance before the jury in jail clothing. Watt v. Page, 452 F.2d 1174 (10th Cir.).

After an evidentiary hearing on remand, the District Court found that there was no “. . . deliberate desire on the part of the petitioner to be tried in his jail clothes for the purpose of sympathy or any other purpose in his behalf,” and that . . the petitioner was prejudiced to some degree by appearing before the jury in the jail clothes above described.” The District Court then granted the writ of habeas corpus, but stayed the writ for ninety days to allow the state to retry Watt. The state, through Warden Anderson, then brought this appeal.

The state asserts that the trial court misinterpreted our opinion in Watt v. Page to hold that the trial of an accused in jail clothing is a per se constitutional violation, and that fact alone was the basis for the grant of the writ in this ease. This the state urges would follow Hernandez v. Beto, 443 F.2d 634 (5th Cir.), and Brooks v. Texas, 381 F.2d 619 (5th Cir.), where statements appear that it is inherently unfair to try a defendant for a crime while garbed in his jail uniform.

We stated in Watt v. Page, 452 F.2d 1174 (10th Cir.), that the nature of the clothing worn by a defendant at his trial is not inherently prejudicial to his right to a fair and impartial trial. We find that the District Court correctly interpreted this decision, and granted the writ only after making a finding that appellee was prejudiced by appearing before the jury in jail clothing.

Appellant also urges us to hold that the finding by the trial court that the appearance of appellee before the jury in jail clothing was prejudicial to some degree was not supported by substantial evidence. We find, however, that it was supported and the finding of the trial court will not be set aside unless clearly erroneous. There is evidence in the record that appellee was referred to during the trial as “the man in coveralls” and that during his closing argument the prosecuting attorney made reference to the appellee and “his kind.” And as we said in Watt v. Page: “The length of the sentence here imposed by the jury which also tried the petitioner could be regarded as an indication of the jury’s prejudice toward the defendant.” Thus we find that the trial court’s finding was not clearly erroneous, and that our instructions in Watt v. Page, supra, were fully complied with by the District Court.

The order of the trial court is affirmed.


author: CELEBREZZE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellant, Plaintiff-Cross-Appellee, v. ONE 1965 CHEVROLET IMPALA CONVERTIBLE, Defendant-Appellee, Defendant-Cross-Appellant. UNITED STATES of America, Plaintiff-Appellant, Plaintiff-Cross-Appellee, v. ONE 1967 PONTIAC BONNEVILLE CONVERTIBLE, etc., Defendant-Appellee, Defendant-Cross-Appellant.
    Nos. 72-1691, 72-1692, 72-1694 and 72-1695.
    United States Court of Appeals, Sixth Circuit.
    March 22, 1973.

      Frederick M. Coleman, U. S. Atty., Toledo, Ohio, on brief for plaintiff-appellant.
    Harland M. Britz, Toledo, Ohio, for defendants-appellees and cross appellants.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and MeCREE, Circuit Judges.
   CELEBREZZE, Circuit Judge.

These are appeals from the District Court's orders granting in part the motions by the respective owners of the named automobiles seeking an order which would require the Government to compensate them for the value of depreciation of the automobiles from the time they were seized until the time the one was ordered returned to the owner and the other was ordered sold. The Government cross-appeals, contending that no compensation for depreciation can be allowed. The cases have been consolidated for appeal by agreement and motion of the parties.

The first case involves a 1965 Chevrolet Impala convertible which was seized for forfeiture on October 22, 1966, from its owner, Robert E. Dombkowski, by special agents of the Intelligence Division of the Internal Revenue Service. Pursuant to 26 U.S.C. § 7302, the automobile was forfeited by court order on September 18, 1968, upon a finding that it had been used in violation of the Internal Revenue wagering tax laws, 26 .U.S.C. §§ 4411, 4412, 4901, and 7262. While the owner’s appeal from this judgment was pending, the Government moved for the sale of the automobile pursuant to Rule E(9)(b) of the Supplemental Rules for Certain Admiralty and Maritime Claims, F.R.C.P., 28 U.S.C. The District Court granted the Government's motion, and the automobile was sold on April 17, 1969.

On October 26, 1971, in light of the Supreme Court’s decision in United States v. United States Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), the District Court entered an order vacating the earlier judgment of forfeiture and directing that Dombkowski be paid the net proceeds from the sale of the automobile.

Dombkowski thereafter filed the present motion for an order requiring the Government to reimburse him inter alia, for the value of depreciation of the automobile from the time of its seizure until the time of its sale. The District Court directed that Dombkowski be reimbursed for depreciation from September 18, 1968, the date of the forfeiture, to April 17, 1969, the date of the sale. The Court, however, disallowed any reimbursement for depreciation from the date of the seizure to the date of the forfeiture.

In the second case, a 1967 Pontiac Bonneville convertible was similarly seized on October 22, 1966, from its owner, William P. Scott, Jr., and forfeited pursuant to a court order of September 18, 1968, because of its use in violation of the wagering tax laws. On November 19, 1971, again relying on the Supreme Court’s decision in United States v. United States Coin and Currency, supra, the District Court ordered the automobile returned to Scott.

Scott subsequently filed the present motion requesting that the Government be required to reimburse him for the value of depreciation of the automobile from the date of its seizure until the date on which it was ordered returned to him. The District Court ordered the Government to reimburse Scott for depreciation from September 18, 1968, the date of the forfeiture, to November 19, 1971, the date on which the automobile was ordered returned, but again disallowed any reimbursement for depreciation from the date of the seizure to the date of the forfeiture.

In requiring the Government to reimburse the owners for depreciation from the date of the forfeiture to the dates on which the automobiles were sold or ordered returned, the District Court reasoned that Congress had authorized the payment of such claims under 40 U.S.C. § 304j, which makes agency appropriations available “for the payment of all moneys found to be due any person upon the duly authorized remission or mitigation of any forfeiture.” Determining that this provision could not be construed as appropriating funds for preforfeiture depreciation, the Court concluded . that Congress had failed to authorize the payment of such claims.

The District Court’s resort to 40 U.S. C. § 304j, appears to have been based on United States v. One Dodge Coach, 22 F.Supp. 204 (E.D.N.Y.1938), wherein Section 304j was recognized as authorization for the claim of a lienholder, as intervenor in a forfeiture proceeding, seeking an order requiring the Government to pay the owner the amount of the lien on the forfeited automobile. Without deciding whether Section 304j might be construed as authorizing such claims against the Government absent a more direct statutory authorization, we conclude that in Section 1346(a) (2) of the Tucker Act, 28 U.S.C. § 1346(a)(2) —enacted some 10 years after the decision in One Dodge Coach — Congress has directly provided for these claims against the Government relative to the unlawful forfeitures. See United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353, 1356-1357 (5th Cir. 1972); Jaekel v. United States, 304 F.Supp. 993 (S.D.N.Y.1969).

Section 1346(a)(2) vests in the federal district courts original jurisdiction, concurrent with the Court of Claims, for

“Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.”

In Jaekel v. United States, supra, the Court concluded that Section 1346(a)(2) afforded it subject matter jurisdiction for a suit to recover the value of an automobile seized and forfeited without adequate notice to the owner, depriving her of her property without due process of law. We quote the relevant portion of the Jaekel opinion:

“The language of § 1346(a)(2) would appear to encompass the plaintiff’s claim against the United States which is founded on the seizure and forfeiture of her automobile pursuant to 49 U.S.C. § 782, 19 U.S.C. § 1607 and 19 U.S.C. § 1609, and requests an award less than $10,000.00. It is clear that § 1346(a)(2) does confer jurisdiction over claims against the United States, not exceeding $10,000.00, involving the application of a law of Congress. Compagnie General Transatlantique v. United States, 21 F.2d 465 (S.D.N.Y.1927), aff’d 26 F.2d 195 (2d Cir. 1928). Thus, where taxes, fines, or penalties are unlawfully imposed, an action may be maintained under § 1346(a)(2) to recover the money. United States v. Emery, Bird, Thayer Realty Co., 237 U.S. 28, 35 S.Ct. 499, 59 L.Ed. 825 (1915); Compagnie General Transatlantique v. United States, supra.
“Though defendants argue that a forfeiture is not a fine or penalty which may be recovered in an action under § 1346(a)(2), ‘A forfeiture is clearly a penalty for a criminal offense.’ Compton v. United States, 377 F.2d 408, 411 (8th Cir. 1967); One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965); and defendants’ argument for the proposition that a limitation should be read into the language of § 1346(a)(2) to exclude forfeitures is not persuasive.” 304 F.Supp. at 997 (footnote omitted).

More recently, in United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353 (5th Cir. 1972), the Court of Appeals for the Fifth Circuit, citing the above-quoted portion of the Jaekel opinion, held that Section 1346(a)(2) provides the proper remedy for a claimant seeking the return of an automobile forfeited under 26 U.S.C. § 7302 for use in violation of the wagering tax laws when the forfeiture was unlawful in light of United States v. United States Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971). Indeed, in One 1961 Red Chevrolet Impala Sedan the Government conceded that Section 1346(a)(2) was the proper remedy for such a claim, as anticipated by the Supreme Court in United States Coin and Currency. See 401 U.S. at 723-724, 91 S.Ct. 1041; 457 F.2d at 1355-1356.

We conclude that the Tucker Act, 28 U.S.C. § 1846(a)(2), rather than 40 U.S.C. § 304j, provides the jurisdictional basis for the present claims against the Government for the value of the depreciation of the automobiles. Under the Supreme Court’s ruling in United States v. United States Coin and Currency, supra, the seizures and forfeitures in these cases were in contravention of the owners’ Fifth Amendment rights, giving rise to the present claims as authorized under Section 1346(a)(2).

With respect to the Government’s appeal, we reject the contention that no allowance should have been made for depreciation. Under the Government’s position, the value of the forfeited property could, due to the mere passage of time, decline 50% or 100% and this depreciation would be borne by the owner, notwithstanding a subsequent determination that the forfeiture was void. Cf. United States v. One Dodge Coach, supra, 22 F.Supp. at 205. This result would, in effect, nullify the Supreme Court’s retroactive application of the Marchetti-Grosso rule in United States Coin and Currency by imposing an irredeemable penalty on owners of depreciable property which was forfeited prior to that decision. We therefore hold that the District Court properly ordered the Government to reimburse the owners for the value of depreciation from the date on which the automobiles were seized to the dates on which they were sold or ordered returned.

Turning to the cross-appeal, we agree with the owners’ contention that they are entitled to the value of depreciation occurring between the date of the seizures and the date on which the judgments of forfeiture were entered. Unlike 40 U.S.C. § 304j upon which the District Court relied, 28 U.S.C. § 1346(a)(2) contains no language which might be construed as restricting the present claims for the value of depreciation to depreciation which occurred after the date on which the judgments of forfeiture were entered. Accord Jaekel v. United States, supra, 304 F.Supp. at 999 (holding the Government liable for the value of an automobile’s depreciation from the date of seizure). No less than the value of the post-forfeiture depreciation, the value of the depreciation occurring between the seizures and the forfeitures — a period of nearly two years— constitutes a penalty, the exaction of which was constitutionally impermissible under United States Coin and Currency.

We affirm that portion of the judgment of the District Court which directs the Government to reimburse the owners for the value of the post-forfeiture depreciation but remand the eases with instructions that the Government also be directed to reimburse the owners for the value of depreciation occurring between the date of the seizures and the date on which the forfeiture judgments were entered.

      . The motion also sought reimbursement for storage costs and expenses, totalling $486.60, which were deducted from the sale proceeds. The Government has not raised as an issue on appeal that portion of the District Court’s order directing that Dombkowski be reimbursed for these costs and expenses.

      . Because of the status of these cases before the District Court, we believe the Court properly received the present motions rather than requiring the owners to file new complaints under Section 1346 (a)(2). Pursuant to an order of this Court dated June 24, 1971, the original forfeiture actions under 26 U.S.C. § 7302 were before the District Court on remand in light of United States v. United States Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971). In its orders of October 26, 1971, and November 19, 1971, respectively, vacating the forfeiture judgments, the District Court ordered that the proceeds of the sale of the Chevrolet be paid to Dombkowski and that the Pontiac be returned to Scott — thus granting in part the relief which might otherwise have been sought in separate suits under Section 1346(a) (2). To have required the owners to file new actions under Section 1346(a) (2) in order to assert their claims for the value of depreciation, said claims being based on the same legal and factual premises as the above orders, would have placed an unreasonable burden on the owners and the courts. Compare United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353 (5th Cir. 1972), wherein the Court held that a separate action under Section 1346(a)(2), rather than a motion pursuant to Rule 60 (b) (4), E.R.Civ.P., under the original forfeiture proceeding, was required where no aspect of the forfeiture proceeding was still pending in the court.

      . We find no merit in the Government’s argument that 28 U.S.C. § 2465 (providing that a successful claimant in a condemnation or forfeiture proceeding shall not be entitled to costs) prohibits a court from requiring the Government to reimburse an owner for any depreciation of his forfeited automobile, and particularly for depreciation occurring between the seizure and the forfeiture when the forfeiture is later declared void. We understand “costs” under Section 2465 to include court costs and costs incident to the seizure. See United States v. One 1949 G.M.C. Truck, 104 F.Supp. 34 (E.D.Va.1950). In the present eases the owners seek not “costs” under Section 2465, but the value of the property itself at the time it was seized.


author: PER CURIAM: VAN DUSEN, Circuit Judge

text:
    CAMBIST FILMS, INC., a corporation, Appellant, v. Kobert W. DUGGAN et al.
    No. 72-1205.
    United States Court of Appeals, Third Circuit.
    Submitted Jan. 9, 1973.
    Decided March 13, 1973.

      David F. Alpern, Alpern & Alpern, Pittsburgh, Pa., for appellant.
    Norman J. Cowie, Pittsburgh, Pa., for appellees; Thomson, Rhodes & Grigsby, Pittsburgh, Pa., of counsel.
    Before McLAUGHLIN and VAN DU-SEN, Circuit Judges, and GREEN, District Judge.
   OPINION OF THE COURT

PER CURIAM:

This appeal is taken from the dismissal as to all defendants of a complaint which sought damages against the district attorney and the chief of detectives of Allegheny County, (Robert Duggan and Edward G. Crone, respectively) and certain detectives, for the seizure by the detectives of films which they considered to be “obscene”. Plaintiff Cambist here was the owner of distribution rights to a motion picture called “The Female”. The film was seized from certain movie theaters that were showing it. The film was taken under the following circumstances. Detectives were sent to view the film at different locations. One, sent by his superiors, viewed all but 15 minutes, believed it violated Pennsylvania criminal statutes, arrested the manager of the theater and took custody of the film. Another, acting under orders of an assistant district attorney, viewed the film and decided that it violated criminal statutes of Pennsylvania. He also arrested the theater manager and took custody of the film. A third detective acted in response to a complaint from local police. After viewing a substantial portion of the film, he too concluded that it violated Pennsylvania criminal statutes. He took custody of the film and placed the manager under arrest. Plaintiff instituted an action alleging the illegal seizure of the film. The district court, 298 F.Supp. 1148, ordered defendants Duggan and Crone to return the film prints to plaintiff, after holding that the facts presented were not sufficient to determine the films as obscene. This order was complied with. Cambist then instituted this common law action for damages which it claimed resulted from the illegal search and seizure of the film.

It is generally settled principle of law that a district attorney is a “quasi-judicial officer”, Commonwealth, ex rel. Specter v. Martin, 426 Pa. 102, 232 A.2d 729 (1967), and in the performance of duties imposed on him by law, he cannot be subjected to personal liability through a common law action. Pennsylvania law has, as a general principle, that quasi-judicial officers cannot be subjected to liability, civil or criminal, for any of their judicial acts, no matter how erroneous, so long as they act in good faith. McNair’s Petition, 324 Pa. 48, 187 A. 498 (1936). See discussion 63 Am.Jur.2d § 289. Federal courts have similarly held. See Bauers v. Heisel, 361 F.2d 581 (3 Cir. 1966). Cambist here refers to the language in Bauers v. Heisel which implied that not all acts of a district attorney should be immune. That case stated that “ * * * the immunity of a prosecutor, however, is not without limitation; it is not absolute. The immunity of judges, from which immunity of prosecutors is derivative, does not extend to acts which are clearly outside their jurisdiction.” This discussion in Heisel pertains to eases involving alleged violations of the Civil Rights Act, not common law tort actions. In such eases Heisel recognized a distinction that needs be observed between excess of jurisdiction, a circumstance which would not allow liability, as opposed to the clear absence of all jurisdiction over the subject matter, which could result in liability for the judicial official in Civil Rights circumstances. Robichaud v. Ronan, 351 F.2d 533 (9 Cir. 1965); Lewis v. Brautigam, 227 F.2d 124 (5 Cir. 1955). Even considering the possible civil rights problem here, no liability can be attributed to the prosecutor in our present case because he was not acting where he clearly had no jurisdiction. He was investigating an alleged violation of the laws of Pennsylvania, which was within his powers and duties, and the actions which he proscribed in this instance were such as he felt necessary to the enforcement of those laws. Obviously, this case in no way approaches the “clear absence of jurisdiction” standard required for possible liability on the part of the prosecutor.

As to liability on the part of the officers, a consideration of Restatement of Torts 2d, § 121, Comment 1, appears necessary. That states “A peace officer making an arrest without a warrant is protected in every case when he acts under a reasonable mistake as to the existence of facts which, under the rule stated in this Section, justify an arrest without a warrant. On the other hand, no protection is given to a police officer who, however reasonably, acts under a mistake of law other than a mistake as to the validity of a statute or ordinance.” We must then determine what facts justify an arrest without a warrant. The rule in Pennsylvania is that “an officer may make an arrest without a warrant where he has probable cause to believe that a misdemeanor is being committed in his presence.” Commonwealth of Pennsylvania v. Garrick, 210 Pa.Super. 124, 126, 232 A.2d 8 (1967). In the matter before us, the detectives watched the film after entering the premises as business visitors, and decided that on the facts as they viewed them, the film was obscene and in violation of 18 P.S. § 4524. Therefore,- they seized the films and arrested the theater managers. Even though it was later found in Cambist Films, Inc. v. Duggan, 420 F.2d 687 (3 Cir. 1969) that these facts were not sufficient to classify this as an obscene film, it goes without question that the facts and circumstances available to the officers at the time of seizure were such as to provide an ordinary person with a reasonable belief that an offense was being committed. It was, at most, a mistake of fact by the officers in their actions, but this does not make them liable in tort under any standard. See Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288. Police officers are not expected to have a complete knowledge of the intricacies of ease law as appellant might try to have us hold when he cites Smith v. Crumlish, 207 Pa.Super. 516, 218 A.2d 596 (1966). The officer is only expected to act in accord with the facts and circumstances of the given situation with which he is confronted.

Finally, for reasons previously discussed in respect to a district attorney’s quasi-judicial status, he is not liable under these facts for actions of his agents and detectives. As noted previously, there is no liability for the prosecutor or the detectives, and there is no basis for attempting to create liability merely because one party here is the agent of the other.

The judgment of the district court will be affirmed.

VAN DUSEN, Circuit Judge

(concurring) .

I concur in the result reached by the foregoing opinion, but differ in the reasoning to be used to support the judgment for the Chief of Detectives of Allegheny County and the detectives working under him.

The plaintiff, Cambist Films, Inc., previously instituted a suit (Civil No. 69-300) in the District Court for the Western District of Pennsylvania on March 17, 1969, against Robert W. Duggan, District Attorney for Allegheny County, Edward G. Crone, Chief of Detectives of Allegheny County, Joseph M. Loughran, District Attorney for Westmoreland County, and Edward Gordon, Chief of Detectives of Westmoreland County. The plaintiff in that complaint only sought equitable relief; an injunction against the defendants and the return of the prints of its film. See Cambist Films, Inc., Inc. v. Duggan et al., 298 F.Supp. 1148 (W.D.Pa.1969), rev’d in part, 420 F.2d 687 (3d Cir. 1969).

On June 2, 1969, after the decision in the district court, the plaintiffs brought the present action against, among others, Crone and named Allegheny County detectives. In the instant case, the plaintiff now claims damages.

Where a plaintiff has had an opportunity to seek damages in its earlier action, its failure to combine all of its claims, legal as well as equitable, which could have been asserted and concluded in the earlier action, is fatal and the county detectives were entitled to a judgment in their favor on the basis of the doctrine of res judicata. For, as is stated by Professor Moore:

“ . . . where law and equity have been united and a litigant can present all his grounds for relief, whether legal or equitable, inconsistent, alternative or hypothetical, in a single action he should be held to have but one cause of action and final judgment on the merits is res judicata as to all matters, legal and/or equitable, in support or defense of that cause of action. One fair day in court is enough.”

IB Moore’s, Federal Practice, § 0.410 [1], at 1156-57 (2d ed., 1965); see also Gambocz v. Yelencsics, 468 F.2d 837 (3d Cir. 1972).

The plaintiff has had its fair day. Two of four principal defendants from the previous suit were named in the instant action. The previous complaint arose out of the same factual context as the instant complaint. Compare complaint in Civil Action No. 69-300, Appellees’ App. at lb, with complaint filed June 2, 1969 (Civil Action No. 69-665, W.D.Pa.), Appellant’s App. at 7a. As stated by Judge Aldisert recently in Gambocz, supra, at 841-842:

“Use of the adjective ‘collateral’ to characterize this form of estoppel grows out of the fact that the bar of the prior adjudication is not interposed directly, by parties to the prior suit, but indirectly, by new defendants, strangers to the earlier action. However, the conceptual basis of such an estoppel is closer to that of pure res judicata than pure ‘collateral estoppel,’ because the bar is interposed on the theory that the second action is but an attempt to relitigate the same cause of action, although the names of the defendants may be different. The distinction between this form of estoppel, res judicata, and ‘pure’ collateral estoppel has been frequently emphasized :
Thus, under the doctrine of res judicata, a judgment ‘on the merits’ in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, such a judgment precludes relitigation of issues actually litigated and determined in the prior suit, regardless of whether it was based on the same cause of action as the second suit.
Lawlor v. National Screen Service Corp., supra, 349 U.S. [322] at 326, 75 S.Ct. [865] at 867 [, 99 L.Ed. 1122] (emphasis supplied). See also Judge Goodrich’s opinion in Lawlor, before this court, 211 F.2d 934, 935 (3d Cir. 1965).
“We previously determined that the essential allegations of the second complaint parallel those of the first. Moreover, what was averred in the original action was a conspiracy participated in by named individuals, and the sole material change in the later suit was the addition of certain defendants, some of whom had been named in the original complaint as participating in the conspiracy but had not been named as parties defendant at that time. We conclude that the relationship of the additional parties to the second complaint was so close to parties to the first that the second complaint was merely a repetition of the first cause of action and, therefore, it is barred by application of the Bruszewski [v. United States, 181 F.2d 419 (3d Cir. 1950)] doctrine.”

Consequently, I would affirm the judgment of the district court as to Crone, Daily, Joller and Kumer on the basis of the principles of res judicata and collateral estoppel.

Judge GREEN concurs in this opinion.

      . The transcript of the pre-trial conference makes clear that the Chief of County Detectives was ill in the hospital during all the events which are the subject matter of this action.

      . Paragraph 6 of the plaintiff’s complaint in Civil Action No. 69-300 alleged that Crone, “through [his] duly authorized agents, servants, employees or officers,” acting under color of state law in violation of 42 U.S.C. § 1983 “seized and confiscated a print of said film [‘The Female’]” contrary to the requirements of the First, Fourth and Fourteenth Amendments.

      . Detectives Daily, Joller and Kumer were not named in the first suit, but are referred to in paragraph 6 of the complaint in Civil Action No. 69-300. See note 2 supra.

      . It is, of course, recognized that whether a plaintiff should be precluded by his earlier judgment by the doctrine of res judicata “depends upon the extent to which legal and equitable remedies have been merged in the state where the judgment is rendered.” Hennepin Paper Co. v. Fort Wayne Corrugated Paper Co., 153 F.2d 822, 826 (7th Cir. 1946); Restatement of Judgments, § 66 (1942). However, it is quite clear that in the federal system actions in law and equity have been united into “one form of action to be known as ‘civil action’.” Rule 2, F.R. Civ.P.; see e. g., Wright, Law of Federal Courts, § 67 (2d ed. 1970). And, even if one looks to Pennsylvania law, a court of equity may, once it assumes jurisdiction, grant complete relief including a judgment for money. Lafean v. American Caramel Co., 271 Pa. 276, 114 A. 622, 624 (1921); see also Helmig v. Rockwell Manufacturing Co., 389 Pa. 21, 131 A.2d 622 (1957).


text:
    Joseph Carroll ROLAND, Petitioner-Appellant, v. PEOPLE OF the STATE OF MICHIGAN, Respondent-Appellee.
    No. 72-1907.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 15, 1973.
    Decided March 21, 1973.
    Joseph Carroll Roland, in pro. per.
    Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Stewart H. Freeman, Asst. Sol. Gen., Lansing, Mich., on brief, for respondent-appellee.
    Before PHILLIPS, Chief Judge, MILLER, Circuit Judge, and MeALLISTER, Senior Circuit Judge.
   PER CURIAM.

The petitioner, Joseph C. Roland, appeals from an order of the United States District Court for the Eastern District of Michigan, denying his petition for the writ of habeas corpus. Petitioner was convicted of first degree murder in a Michigan court in 1966. Having exhausted his state remedies, he filed his petition in the court below for habeas corpus and an order was entered granting the relief sought upon the ground that the petitioner’s credibility had been impeached in the state court trial by the use of a confession which had been obtained from the petitioner without advising him with respect to his Miranda rights. Roland v. People of State of Michigan, 320 F.Supp. 1195 (E.D.Mich.1970). On appeal this Court remanded the case for reconsideration in light of the Supreme Court’s ruling in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), which was decided while the case was pending in this Court on appeal. Roland v. People of State of Michigan, 439 F.2d 1203 (6th Cir. 1971). Upon remand, the district court dismissed the petition in an unpublished opinion. The petitioner then filed a new petition in the district court resulting in the entry of an order of dismissal from which the present appeal was taken.

The sole question presented on appeal is whether in a criminal case it is permissible for the state to undertake to impeach the credibility of a defendant by a confession obtained from him without warning him as to his rights in accordance with the Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Upon consideration, we are of the opinion that the exact issue presented by this appeal was decided adversely to the petitioner’s position in Harris v. New York, supra. The Supreme Court there held that although a confession obtained in violation of the principles of Miranda may not be used against the defendant in the prosecution’s case in chief, it may nevertheless be used for impeachment purposes to attack the credibility of the defendant on cross-examination. That was the sole use made of the confession in the instant case.

The judgment of the district court dismissing the petition for habeas corpus is therefore affirmed.


author: PER CURIAM:

text:
    UNITED STATES of America and Thornton J. Camfield, Special Agent, Internal Revenue Service v. WALL CORPORATION et al., Appellants.
    No. 72-1767.
    United States Court of Appeals, District of Columbia Circuit.
    Dec. 13, 1972.
    Mr. Raymond G. Larroca, Washington, D. C., with whom Messrs. Herbert J. Miller, Jr., and William H. Jeffress, Jr., Washington, D. C., were on the brief, for appellants.
    Mr. John Mullenholz, Arlington, Va., of the bar of the Court of Appeals of Maryland, pro hac vice, by special leave of court, with whom Messrs. Scott P. Crampton, Asst. Atty. Gen., Crombie J. D. Garrett and Robert E. Lindsay, Attys., Department of Justice, were on the brief, for appellees.
    Before McGOWAN, ROBINSON and MacKINNON, Circuit Judges.
   PER CURIAM:

The questions presented by this appeal are whether an Internal Revenue Service summons, issued pursuant to 26 U.S.C. § 7602, requiring Wall Corporation to produce books, records, expense vouchers and other data relevant to the tax liability of Daniel C. and Roslyn Wall was issued for a proper purpose, and whether the District Court erred in refusing to permit Wall Corporation discovery designed to adduce the purpose of the summons. After careful consideration of Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1970), and post-Donaldsow cases, we affirm the District Court’s rulings upholding the validity of the summons and refusing to permit discovery.

This case is before this court on appeal from an order of the District Court requiring appellant, Wall Corporation, to comply with an Internal Revenue Service summons issued February 14, 1972 to produce certain documents and records. Appellant Daniel C. Wall, who sought and was granted permission to intervene in the District Court, is the subject of a tax investigation being conducted by Special Agent Camfield. During the course of his investigation, Camfield issued a summons to appellant to produce records and give testimony concerning the taxable years 1967, 1968, and 1969. On February 28, 1972 appellant Wall Corporation appeared at the hearing represented by Daniel C. Wall, its president and sole stockholder, but refused to produce the summoned documents and records. Wall Corporation and Daniel Wall were found in contempt of the District Court order on November 27, 1972.

The contention by appellants that the summons was invalid and would be used solely for gathering information to be used in a criminal prosecution is not supported either by the facts of this ease or by the applicable ease law. A broad distinction must be drawn between investigation and prosecution. As the Supreme Court in Donaldson stated:

We note initially that, despite the dictum, the courts of appeals in opinions issued since Reisman [Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964)] was decided, appear uniformly to approve the use of a summons in an investigation that is likely to lead to civil liability as well as to criminal prosecution. The use of a summons also has been approved, even where it is alleged that its purpose is to uncover crime, if no criminal prosecution as yet has been instituted. [Footnotes omitted].

400 U.S. at 532-533, 91 S.Ct. at 543.

In United States v. Bell, 448 F.2d 40, 41-42 (9th Cir. 1971), the court, faced with the recurring problem of determining the validity of an Internal Revenue Service summons, stated:

Where the Government is attempting to collect revenue under the tax laws, and no criminal case is actually pending against the taxpayer, a summons to examine the taxpayer’s records obtained pursuant to 26 U.S.C. § 7602, may be used even where its purpose is allegedly to uncover crime.

In this case no recommendation for criminal prosecution has been made, and the material sought is relevant to a determination of the civil tax liability of Daniel Wall and his wife, Roslyn. On these facts, the District Court’s holding that the summons was issued for a legitimate purpose is consistent with current interpretations of Donaldson and with our own reading of it. The Eighth Circuit has said:

The Donaldson case makes it clear that the summons can be successfully challenged only when a criminal prosecution has been instituted and is pending at the time of the issuance of the summons or when criminal prosecution has been recommended. .
Since it is undisputed that there is no related criminal prosecution pending and none has been recommended, the procedural complaints concerning the trial court’s alleged restriction on discovery must fall. .

United States v. Troupe, 438 F.2d 117, 119 (8th Cir. 1971). See also United States v. National State Bank, 454 F.2d 1249 (7th Cir. 1972).

The Supreme Court ended its opinion in Donaldson by saying:

We hold that under § 7602 an internal revenue summons may be issued in aid of an investigation if it is issued in good faith and prior to a recommendation for criminal prosecution.

400 U.S. at 536, 91 S.Ct. at 545.

Our inquiry is not ended upon a determination that prosecution has neither been instigated nor recommended, since Donaldson also requires that a summons be issued “in good faith.” Thus, if it can be shown that the investigating agent had already formed a firm purpose to recommend criminal prosecution even though he had not as yet made a formal recommendation, issuance of the summons would presumably be in bad faith. Similarly, if the civil liability were already determined, the summons would appear to be solely for a criminal purpose. In this case the testimony elicited from Special Agent Camfield indicated that he was in the Intelligence Division, the function of which is criminal investigation, and that no other agent was working on the case. This testimony alone was insufficient to establish bad faith in the sense of a fixed purpose to recommend criminal prosecution. See United States v. Stribling, 437 F.2d 765, 773 (6th Cir. 1971); United States v. Erdner, 422 F.2d 835, 836 (3rd Cir. 1970).

We find no error in the quashing of Wall Corporation’s subpoena to require Special Agent Camfield to produce memoranda relating to his investigation of the taxpayer. During examination of the agent at the hearing, appellant elicited the nature of his position and the scope of his responsibilities. Apparently Wall Corporation considered Agent Camfield’s testimony on these points sufficient to establish that the investigation was “solely for a criminal purpose” within Donaldson, for it chose to inquire no further. The existence of this opportunity to probe for bad faith, and the apparent tactical decision to exploit that opportunity to the very limited and inconclusive degree indicated, persuades us that the District Court did not err in denying further independent discovery.

We conclude, therefore, that the order of the District Court granting the motion of the United States to quash the subpoena served upon Special Agent Camfield and ordering Wall Corporation to produce the documents and materials specified in the summons should be affirmed.

It is so ordered.

      . United States v. National State Bank, 454 F.2d 1249 (7th Cir. 1972); United States v. Bell, 448 F.2d 40 (9th Cir. 1971); United States v. Pritchard, 438 F.2d 969 (5th Cir. 1971); United States v. Troupe, 438 F.2d 117 (8th Cir. 1971).

      . When this matter was taken under submission on the merits, there was before us a petition to stay the judgment enforcing the summons pending appeal. Learning that the briefs were filed, we asked the parties, at the argument held on the petition, to address themselves to the merits more fully than would perhaps normally be the case. The disposition we now make renders the petition moot.


text:
    Verline OLIVER, Administratrix of the Estate of Rembert Marshall Oliver, Appellant, v. SOUTHERN RAILWAY COMPANY and General Motors Corporation.
    No. 71-2005.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 8, 1972.
    Decided Dec. 29, 1972.

      Mr. R. Harrison Pledger, Jr., Washington, D. C., with whom Mr. Max M. Goldberg, Washington, D. C., was on the brief, for appellant.
    Mr. Richard W. Turner, Washington, D. C., with whom Mr. Stephen A. Trimble and Mr. Nicholas D. Ward, Washington, D. C., were on the brief, for appellee, Southern Railway Co.
    Mr. James C. Gregg, Washington, D. C., for appellee, General Motors Corp.
    Before Justice CLARK, of the Supreme Court of the United States, and McGOWAN and MacKINNON, Circuit Judges.

       Sitting by designation pursuant to Title 28, U.S.C. Section 294(a).

   PER CURIAM:

Appellant’s decedent was killed when, on May 30, 1968, the unloaded 1967 General Motors Corporation flat bed truck he was driving west on Virginia Route 661 collided with the Southern Railway Company freight train engine proceeding north through the grade crossing located north of Manassas, Virginia. Appellant, decedent’s wife and administratrix of his estate, brought a diversity suit in the District Court for wrongful death under applicable Virginia law, Va.Code Ann. § 8-633 et seq. (Michie Supp. 1972), alleging in her amended complaint that Southern, by its negligence, and General Motors, by its negligence and warranty breach, did “jointly, severally and concurrently” cause the death of her husband. The trial judge directed verdicts in favor of (1) Southern at the conclusion of appellant’s opening statement and (2) General Motors after appellant’s evidence had been presented. This appeal challenges the propriety of those rulings; and, for the reasons hereinafter appearing, .we reverse as to both.

I

In her amended complaint against Southern, appellant asserted that the railway company was negligent with respect to both the manner in which it operated the train, and the physical conditions it permitted to exist at the site of the railroad grade crossing. In the opening statement in her behalf to the jury, it was contended that the crossing was obscured by trees and that the train failed to sound its whistle or bell as required by Virginia law. It was stated as well that the decedent attempted to apply his air brakes but that they failed due to defective formation of the brake valve assembly installed by General Motors.

Southern, in moving for a directed verdict on the basis of the foregoing statement, seized upon the facts asserted by appellant as showing the negligence or warranty breach of General Motors represented by that brake failure and urged that, as a matter of Virginia law, such a failure would constitute an independent intervening cause of the accident which would operate to insulate Southern from liability. Appellant’s counsel opposed the motion on the ground that he intended to prove concurrent negligence of both defendants. Ruling that there could not be concurrent negligence and that if the jury found from the evidence that there was such a brake failure Southern would not be liable, the trial judge granted the motion. While we do not fault this statement of the substantive law, we find that the standard governing the granting of a directed verdict at this stage of a case was misapplied.

Appellant does not, nor could she, challenge the inherent power of the court to direct a verdict at the conclusion of her opening statement. Best v. District of Columbia, 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 882 (1934). See generally Annot., 5 A.L.R.3d 1405 (1966). Best does, however, require that “it must clearly appear, after resolving all doubts in plaintiff’s favor, that no cause of action exists” before the court may direct a verdict on an opening statement. 291 U.S. at 416-417, 54 S.Ct. at 489. Applying that test to the statement before us, the doubt we believe should have been resolved in appellant’s favor is the question whether General Motors would have been proven to be an independent intervening cause —a question which the trial judge himself acknowledged would turn on the jury’s view of the evidence. Indeed, he himself ultimately resolved the question in favor of plaintiff’s claim against Southern by directing a verdict in favor of General Motors.

Whether properly accomplished by judge or jury, the exoneration of General Motors would remove the independent intervening cause assertedly insulating Southern, leaving the latter’s liability a question to be resolved on the evidence presented. While we intimate no view on the efficacy of its defense, given the possibility that General Motors would prevail upon its presentation, and that Southern might then be found liable if appellant proved the contentions set forth in her opening statement, we find that it was premature to absolve Southern. See Tuck v. Chesapeake & Ohio Ry. Co., 251 F.2d 180, 181 (4th Cir. 1958); Cioffi v. Queenstown Apartments, Inc., 100 U.S.App.D.C. 227, 243 F.2d 650 (1957).

II

As indicated above, appellant rests her claim against General Motors on the assertion that when the decedent applied his brakes to avoid the collision, the internal valve cage of the air brake application valve assembly failed due to improper design, manufacture and inspection of the assembly. This prevented the brakes from being engaged, thus causing the fatal accident which ensued.

The testimony elicited from appellant’s witnesses reveals that the truck, composed of a cab and a flat body on which a hydraulic crane was installed to unload brick and cinder block, was struck by the train at the left front of the cab. Primary damage was restricted to the cab, which was demolished. The valve assembly in question, affixed to the floorboard on which the driver’s legs rest, was found 50 to 75 feet from the point of impact and was removed on the day of the accident along with the remainder of the truck wreckage to the Alexandria, Virginia yard of decedent’s employer, the J. J. Taylor Company. Approximately three weeks later the employer was prompted to inspect the valve assembly for the first time since the accident. Upon its removal it was observed that no damage had been done to the floorboard at the point of fixation, nor to the brake pedal or the connecting shaft.

The operation of the assembly was described as being initiated by the application of pressure on the brake pedal. Through a linkage apparatus this pressure is transmitted to a piston which, upon its movement upward, permits the release of pressurized air through the exhaust valve into the brake system. Once sufficient pressure is applied to activate the assembly, the brakes operate with a constant force independent of any increase in pressure on the brake pedal. And, once put into operation, the brakes stop the wheels so that if the brakes remain applied, the truck will skid. There were no skid marks found at the scene of the accident.

The inspection of the valve assembly disclosed that the front of the casting was broken and the bottom plate bent. The employer’s vice-president for maintenance testified that such a break would prevent the upward movement of the piston, thereby preventing operation of the air brake. He further stated that, while not knowing what caused the break, it was possible that the collision did. Appellant’s key witness, however —a metallurgist with an expertise in fracture analysis — stated that in his opinion the collision could not have caused the break. Rather, he stated it to have resulted from “normal foot action during driving,” which ultimately produced the fracture at a point in the valve assembly improperly thin to withstand the anticipated stress, and, in any event, improperly manufactured and tested in that the portion of aluminum which fractured was excessively hydrogenated and could have been detected as such by a standard examination. The expert also stated that, once activated, the air brakes would stop the wheels, and admitted the possibility of momentary braking action prior to failure which might have produced skid marks.

General Motors moved for a directed verdict at the conclusion of appellant’s evidence. The trial judge granted the motion because there was no evidence for the jury to determine when the fracture occurred. He relied on the absence of evidence that the brakes were ever applied, there being no skid marks at the scene; and the Virginia vehicle inspection one day prior to the accident which found the brakes in satisfactory condition. With the injunction in mind that a directed verdict is proper only when “without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict,” Brady v. Southern Ry. Co., 320 U.S. 476, 479, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943), and viewing the evidence most favorably to appellant, who was entitled to every legitimate inference reasonably to be deduced therefrom, Muldrow v. Daly, 117 U.S.App.D.C. 318, 329 F.2d 886, 888 (1964), we find there was sufficient evidence to let the matter proceed at least to the conclusion of General Motors’ presentation. And, to the extent that there was conflicting testimony with regard to the cause of the brake failure, it was within the jury’s province to resolve. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 700-701, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962); Kendall v. Gore Properties, Inc., 98 U.S.App.D.C. 378, 236 F.2d 673, 682 n. 30 (1956).

First, the successful vehicle inspection is not inconsistent with appellant’s theory of General Motors’ liability. Second, the opinion of appellant’s expert and the absence of damage around the brake pedal and floorboard area were clearly enough evidence to support a view that normal foot pressure, and not the collision, caused the fracture of the valve assembly. Finally, there was sufficient evidence which would permit the inference that the decedent did attempt to apply his brakes prior to the collision. Appellant is faced with a difficult burden in establishing this fact since there were no eyewitnesses to the accident. But we believe it to be a fair assumption that, without a showing to the contrary as suggested in note 3, supra, decedent as a licensed truck driver would be attentive to his driving responsibilities, would have seen the train ahead of him, at least as it emerged from the obscuring foliage, and would have attempted to stop his truck. This is particularly so in view of the facts that the decedent was familiar with the railroad crossing in question, and had himself once been temporarily stalled on a crossing in the face of an oncoming train, both tending to increase the probability of his attentiveness prior to the fatal collision. We find as well that the absence of skid marks alone does not operate to withdraw from the realm of reasonable inference the possibility that the decedent did, unsuccessfully, attempt to apply his brakes.

Reversed.

      . Specifically, appellant alleged inter alia in her pretrial statement that Southern operated the train at an excessive speed, and permitted the crossing to become obscured by foliage while failing to provide adequate warning devices for vehicular traffic.

      . Despite appellant’s reliance at trial on proof of concurrent negligence, it is clear from her amended complaint quoted above that she was also alleging “several” liability. In view of the complaint and the facts set forth in her pretrial and opening statements, we do not think it justifiable to limit the grounds for appellant’s opposition to that stated at trial. See Lampka v. Wilson Line of Washington, Inc., 117 U.S.App.D.C. 55, 325 F.2d 628, 629 (1963).

      . At oral argument there were intimations that the train engineer was present at the trial to testify for one or both defendants. To illustrate the possibility suggested, we need only suppose his testimony would reveal inattention on the decedent’s part such that he would not have attempted to apply his brakes.

      . The skidding phenomenon was also said to result if either of the two brake back-up systems were engaged — one automatic, applied as soon as system air pressure dropped below 60 psi; one manual, applied by pulling a lever to release air through another exhaust valve.

      . In addition to suggesting that properly functioning brakes were not applied, the lack of skid marks just as strongly suggests that brakes that malfunctioned were applied, as appellant’s expert witness so attested. While the witness conceded that momentary successful application of the brakes might cause skidding prior to failure, aside from the uncertain effect of a fleeting release of air into the system, it is also possible that the brakes were applied lightly at the curve less than a mile before the crossing. This might have caused a fracture that left decedent wholly without brakes during a later attempt to stop. Regarding the operation of the back-up brake systems, supra note 4, it appears to us not improbable that the circumstances would suspend decedent’s ability to apply the manual system. The automatic system would not necessarily engage for, as appellant’s expert testified, upon failure of the valve assembly the exhaust valve would reseat, merely blocking the passage of pressurized air into the brake system — not permitting an escape of air such as to reduce the pressure below 60 psi as was required to activate the automatic brake.