text:
    Marion BURTON, Petitioner-Appellant, v. Charles GOODLETT, in his official capacity, as Chief of Police of Belle Glade, Respondent-Appellee.
    No. 72-2973.
    United States Court of Appeals, Fifth Circuit.
    July 11, 1973.

      Eric Haugdahl, Fla. Rural Legal Services, Inc., William S. Finger, Belle Glade, Fla., for petitioner-appellant.
    John E. Baker, Belle Glade, Fla., Robert L. Shevin, Atty. Gen., Tallahassee, Fla., for respondent-appellee.
    Bruce S. Rogow, Miami, Fla., counsel of record on behalf of American Civil Liberties Union, amicus curiae, for appellant, Marion Burton.
    Before COLEMAN, MORGAN and RONEY, Circuit Judges.
   COLEMAN, Circuit Judge:

The Municipal Court of Belle Glade, Florida has twice attempted to impose a valid sentence upon Marion Burton, who pleaded guilty to two separate offenses of driving while intoxicated and who also pleaded guilty to bail jumping in connection with those offenses. Burton was denied habeas corpus relief in the U. S. District Court for the Southern District of Florida. He now appeals. We reverse and remand with directions that the Municipal Court be given the opportunity to impose a sentence consistently with the constitutional principles hereinafter discussed.

On April 18, 1972, upon his pleas of guilty, the Municipal Court of Belle Glade, Florida sentenced Burton as follows:

1. Case No. 37,626 — Driving while intoxicated on January 8, 1972— 50 days or a $250 fine, plus $5 costs, and revocation of driver’s license for three months.
2. Case No. 38,727 — Driving while intoxicated on April 13, 1972 — 40 days or $200 fine, plus $5 costs.
3. Case No. 38,743 — Failure to appear pursuant to an appearance bond — 20 days or a fine of $100, plus $5 costs.

The sentences imposed were to be served concurrently. The petitioner alleges that he was unable to pay the fines imposed and that his offer to pay his fines in installment payments was refused. His indigency (at least in a legal sense) is not contested.

Petitioner initially sought relief in the Circuit Court of the 15th Judicial Circuit of Florida by way of a petition for the writ of habeas corpus. On May 8, 1972, that Court entered its Order temporarily relinquishing jurisdiction to the Municipal Court of Belle Glade. Florida “to consider the nature of the fines imposed in light of Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971) and Martin v. State, 248 So.2d 643 (Fla., 1971)”.

Pursuant to that order, on May 11, 1972, the Belle Glade Municipal Court resentenced Burton to mandatory jail time as follows:

1. Case No. 37,626 — mandatory imprisonment for 45 days and revocation of driver’s license for one year.
2. Case No. 38,727 — mandatory imprisonment for 35 days and revocation of driver’s license for three months.
3. Case No. 38,743 — mandatory imprisonment for 15 days.

Again, the sentences were to be served concurrently. In resentencing the petitioner, the municipal judge considered:

“the nature of the charges and the close proximity of the times upon which the [petitioner] operated his vehicle while under the influence of intoxicants . . . ”

Nothing was said of the conduct of the defendant or of any other consideration which entered the picture subsequent to the date of the original sentence.

Thereafter, June 6, 1972, the cause was stayed by an Order of the U. S. District Court pending final determination of the petition for writ of habeas corpus then pending in the State Circuit Court.

On June 16, 1972, the State Circuit Court entered a final order dismissing the petition for writ of habeas corpus upon the authority of Phillips v. Allen, 255 So.2d 528 (Fla., 1971). In Phillips the Supreme Court of Florida, Chief Justice Ervin dissenting, held that re-sentencing a defendant to mandatory jail time does not violate the principles announced in Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971). We find no record to indicate that the Supreme Court of the United States was asked to review Phillips.

In light of Phillips it is unnecessary that the petitioner should further exhaust his state remedies, Mary Layton and Stanley Gregory Walker v. Dale Carson, 5 Cir., 1973, 479 F.2d 1275.

In Tate v. Short, supra, the Corporation Court of Houston, Texas, had jurisdiction to levy fines, but could not impose imprisonment. Fines totalling $425 had accumulated against Preston A. Tate for nine traffic violations. Not being able to pay the fines, he was sent to jail for 85 days to serve out the fines at the rate of $5 per incarcerated day. The Supreme Court held that Tate “was subjected to imprisonment solely because of his indigency”, quoting from the views expressed by four Justices in Morris v. Schoonfield:

“[T]he Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.”

The Tate Court further said that consistently with the Equal Protection Clause Texas could not “limit the punishment to payment of the fine if one is able to pay it, yet convert the fine into a prison term for an indigent defendant without the means to pay his fine”.

The Court concluded with the caveat, “nor is our decision to be understood as precluding imprisonment as an enforcement method when alternative means are unsuccessful despite the defendant’s reasonable efforts to satisfy the fines by those means; the determination of the constitutionality of imprisonment in that circumstance must await the presentation of a concrete case”. •

Surely, such a caveat was an inescapable ingredient of the opinion. If indigents may avoid the payment of fines while those with funds or property are required to pay the penalty, we are a country in which some people are ruled by law while others are practically immune, at least as to offenses ordinarily punished by the exaction of a fine.

We were interested to see what the Texas Court of Criminal Appeals did with Tate’s case when it came back on remand, Ex parte Preston A. Tate, Tex.Cr.App., 471 S.W.2d 404 (1971). That Court pointed out that the Texas Legislature had provided “alternative means” for the collection of fines and costs from indigents subject to such penalties. By these statutory “alternative means” the defendant may be ordered to pay the entire fine and costs at a later date, or he may be ordered to pay specified portions at designated intervals.

Obviously, the Supreme Court left the door open for the State to impose imprisonment upon an individual who fails to comply with such orders, certainly if the failure is wilful or otherwise unjustified.

We note, of course, that unlike the Tate, Court in Houston the Belle Glade Court could both fine and imprison.

In actuality, however, the situation came to be the same. Burton was sentenced to fine or imprisonment, the intent of which was that if Burton did not immediately pay the fine he would serve the time. Upon failure to pay, the fine would immediately be transposed into imprisonment. This is what, as to indigents, Tate v. Short prohibited, Frazier v. Jordan, 5 Cir., 1972, 457 F.2d 726.

The Florida Circuit Court ordered the Municipal Court to comply with Tate. The defendant was resentenced, on his pleas of guilty. No fine was imposed. Instead, he has been sentenced to serve time in jail. Even if it did not violate Tate v. Short, this new sentence must pass the scrutiny of another decision of the Supreme Court, North Carolina v. Pearce, 1969, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, as refined by the further decisions of that Court in Colten v. Kentucky, 1972, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584, and Chaffin v. Stynchombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 [1973].

Pearce held that neither the double jeopardy provision nor the Equal Protection Clause of the United States Constitution bars imposition of a more severe sentence upon reconviction of a defendant whose conviction has been set aside at his own behest. The imposition of a heavier sentence, however, to punish the defendant for getting his original conviction set aside would be a denial of due process. An unexplained tripling of the previous sentence without any reason or justification for the increase would justify setting aside the second sentence, whether on direct appeal or on collateral attack.

Due process of law, the Supreme Court proceeded to say, 395 U.S. at 725, 89 S.Ct. at 2080, requires that vindictiveness and retaliatory motives on the part of the sentencing judge must play no part in the sentence a defendant receives after a new trial. Therefore, said the Court “[W]henever a judge imposes a more severe sentence upon a defendant after a new trial the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal”.

In Colten, supra, the Suprem Court explained its rationale in Pearce, supra, by saying that it was concerned with the imposition of purposeful punishment for having successfully appealed and that it had imposed; a rule to ensure the absence of vindictiveness against the defendant for having successfully attacked his first conviction, further ensuring that the apprehension of such vindictiveness would not deter the defendant’s exercise of the right to appeal or to collaterally attack his first conviction.

In Chaffin, supra, the same reasoning was applied to the imposition of a higher sentence by a jury not informed of the prior sentence, there being nothing otherwise shown to be the product of vindictiveness.

As already pointed out, when the Belle Glade Municipal Court resentenced Burton it made the following statement with reference to the new sentence:

“This Court in imposing the foregoing sentences is of the opinion that, in this particular ease, the conduct of the Defendant, the nature of the charges, and the close proximity of the times upon which the Defendant operated his vehicle while under the influence of intoxicants are such that the imposition of the fine alone would not constitute a sufficient deterrent.”

It must be noted that the considerations there recited were all obviously known to the judge when he had first imposed the sentences. The record discloses no “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing”, 395 U.S. at 726, 89 S.Ct. at 2081.

Thus, if the second sentence was more severe than the first then that sentence was invalid.

We think the second sentence was more severe than the first. It is hardly arguable that being in jail is less severe than a diminution of the pocket book, see Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530.

We must agree with the words of Chief Justice Ervin in Phillips v. Allen, swpra,:

“It’s all too patent a discrimination. If Petitioner had been given a prison sentence only and not a fine also originally there would be no discrimination. But to redo the judgment of conviction and impose imprisonment after the fact when it is established Petitioner is an indigent who couldn’t pay the alternative fine is too neat a precedent which simply by indirection authorizes trial judges to impose alternative imprisonments after it develops indigents can’t pay their fines.”

Consequently, we reverse the judgment below and remand the case with directions that habeas corpus relief be extended Burton unless within thirty days after the receipt of the mandate in the District Court the Municipal Court of Belle Glade shall resentence Burton in conformity with this opinion.

It may be that Burton is not really an indigent. The record before us shows that he was regularly employed at a salary of $150 a week. He could afford a car, the gas, and the intoxicants to drive while intoxicated and be apprehended twice within three months. While on bail, he disdained to appear. Yet, the Municipal Court treated him as an indigent without specifically finding him to be such and the City did not contest it. That subject should be the first topic of inquiry and adjudication, with appropriate findings, if and when Burton comes up for resentence.

Moreover, we remind the Municipal Court that Tate v. Short, supra, expressly disclaims any notion of allowing an indigent to escape the penalty of the law simply because he is an indigent. We repeat the language: “nor is our decision to be understood as precluding imprisonment as an enforcement method when alternative means are unsuccessful despite the defendant’s reasonable efforts to satisfy the fines by those means; the determination of the constitutionality of imprisonment in that circumstance must await the presentation of a concrete case”.

Nothing in this opinion is to be construed as an intimation that the Belle Glade Court could not have sentenced Burton to jail only, in the first instance. Nor do we infer that a sentence to jail or a fine as originally imposed in this case would be unconstitutional if Burton had been given the choice of the alternatives and if he had received Tate v. Short treatment upon a choice to pay the fines.

Reversed and remanded for further proceedings not inconsistent herewith.

Reversed and remanded.

      . 299 U.S. 508, 90 S.Ct. 2232, 26 L.Ed.2d 773 (1970).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Salvatore Anthony FERRAIOLI, Defendant, Appellant.
    No. 73-1092.
    United States Court of Appeals, First Circuit.
    Argued June 6, 1973.
    Decided July 5, 1973.

      Michael S. Field, Boston, Mass., with whom Field, Rudnitsky, Mullane & Schultz, Boston, Mass., was on brief, for appellant.
    Robert B. Codings, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief, for appellee.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

Salvatore Anthony Ferraioli appeals from his conviction under 50 U.S.C. App. § 462 for refusing to submit to induction into the Armed Forces. We find it necessary to discuss only those arguments raised by appellant which are not foreclosed by our recent decision in United States v. Ford, 478 F.2d 169 (1st Cir. 1973). Two matters remain for our consideration.

Appellant first contends that the local board improperly refused to reopen his classification to consider his request for a 1-Y deferment. This request was based on a letter written by a civilian psychiatrist which diagnosed appellant as suffering from “anxiety neurosis” and predicted difficulties both for him and for the military if he were to be inducted into the army. The psychiatrist’s findings were based on two “extended” interviews with appellant, and included a recommendation that he seek psychotherapy at an early date. Previous to appellant's request for reopening, the above information had been considered by an army psychiatrist who, after examining appellant, nevertheless found him medically qualified for induction. This finding was subsequently approved by a medical officer and by the Surgeon General. Appellant argues, however, that the information presented to his local board constituted a prima facie claim for a 1-Y deferment and that the board therefore contravened the holding of Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970), in refusing to reopen his classification. We agree with appellant that the army’s findings as to his psychiatric fitness to serve could not “conclusively refute” his allegations of disability, and that the board’s failure to reopen can therefore not be justified on this ground. See United States v. Butterfield, 5 SSLR 3904, No. 72-240 (D.Ore. Dec. 23, 1971); cf. United States v. Ford, 431 F.2d 1310 (1st Cir. 1970). We cannot agree, however, that a prima facie claim for exemption was made out. The grounds for psychiatric disqualification from induction into the Armed Forces are set forth in Army Regulation 40-501, Chapter 2, Section XVI. The letter submitted by appellant contains no allegations of fact which, under these standards, would have been sufficient to warrant granting the requested classification. For example, there is no indication that appellant’s psychiatric condition has ever resulted in hospitalization, prolonged care by a physician, repeated loss of time from normal pursuits or impaired school or work efficiency. Similarly, to the extent that appellant suffered from “immaturity, instability, personality inadequacy, and dependency,” these character disorders were not manifested in the manner set forth by the regulation. Army Regulation 40-501, subsection 2-34 (b). The only disqualifiable category into which he might arguably fall is that requiring “a brief psychoneurotic reaction . . . sufficiently severe to require medical attention or absence from work or school for a brief period.” Army Regulation 40-501, subsection 2-33(b). It is clear from the record, however, that appellant’s two interviews with a psychiatrist were merely evaluatory in nature and not sufficient to meet the requirement of “medical attention” within the meaning of the above regulation. Since no prima facie claim for deferment on medical grounds was presented, the local board properly refused to reopen appellant’s classification. See Benitez-Manrique v. Micheli, 439 F.2d 1173 (1st Cir. 1971).

Appellant also challenges the local board’s refusal to admit his father as a witness at a personal appearance before the board relating to his conscientious objector claim. The relevant Selective Service regulation provides as follows:

“No person other than a registrant shall have the right to appear in person before the local board, but the local board may, in its discretion, permit any person to appear before it with or on behalf of a registrant . . . . ” 32 CFR § 1624.1(b). (Emphasis added.)

Especially in view of the fact that appellant’s father had already submitted a written statement to the local board attesting to his son’s sincerity as a conscientious objector, it cannot be said that there was an abuse of discretion in this case. Nevertheless, appellant argues that the board’s refusal to allow his father to testify deprived him of the fair hearing required by due process of law. The requirements of due process, however, “frequently vary with the type of proceeding involved,” Hannah v. Larche, 363 U.S. 420, 440, 80 S.Ct. 1502, 1513, 4 L.Ed.2d 1307 (1960); K. Davis, Administrative Law Treatise § 7.01, at 408 (1958), and it is important to remember in this context that the Selective Service System is “calculated to function .. in times of peril.” United States v. Nu-gent, 346 U.S. 1, 9, 73 S.Ct. 991, 996, 97 L.Ed. 1417 (1953). In weighing the importance of a régistrant’s right to have witnesses appear personally before the board, therefore, the necessities of efficiency and expedition cannot be entirely ignored. The most convincing evidence of a registrant’s sincerity in claiming conscientious objector status will ordinarily be presented by the registrant himself; When provision is additionally made for the submission of supportive written statements from others, we cannot say that it violates fundamental fairness to curtail a registrant’s right to have these statements repeated orally to the board. See United States v. Evans, 425 F.2d 302, 304 (9th Cir. 1970), cert. denied, 402 U.S. 987, 91 S.Ct. 1648, 29 L.Ed.2d 153 (1971); Uffelman v. United States, 230 F.2d 297, 303-304 (9th Cir. 1956); see also United States v. Nugent, supra.

Finally, we note that appellant’s invocation of Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959) is without merit.

The judgment is affirmed.

      . Insofar as appellant attempts to distinguish Ford on it facts, we note that his claim for conscientious objector classification was virtually identical to that presented by the registrant in the earlier case. Bike Ford, appellant characterized himself as a “selective” conscientious objector, and limited his application of the Catholic “just war” theory to the Vietnamese conflict. Compare United States v. Berg, 310 F.Supp. 1157 (D.Me.1970). Moreover, an examination of appellant’s detailed explanation of his beliefs, both in his Form 150 and in his oral statements before the local board, clearly reveals that he was able to contemplate “real shooting wars,” Sicurella v. United States, 348 U.S. 385, 391, 75 S.Ct. 403, 99 L.Ed. 436 (1955), in which he could conscientiously participate. Compare United States v. Curry, 410 F.2d 1297 (1st Cir. 1969). This being the case, appellant did not present a prima facie claim for exemption, and was accordingly not entitled to a statement of the local board’s reasons for denying the requested classification.


author: NICHOL, District Judge.

text:
    NUCLEAR CORPORATION OF AMERICA, Appellee, v. Harold LANG, Appellant.
    No. 72-1539.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 16, 1973.
    Decided June 29, 1973.

      Daniel D. Jewell, Norfolk, Neb., for appellant.
    Peter E. Marchetti, Omaha, Neb., for appellee.
    Before LAY and BRIGHT, Circuit Judges, and NICHOL, District Judge.

       Chief Judge, District of South Dakota, sitting by designation.

   NICHOL, District Judge.

Appellant, Harold Lang, appeals the decision of the United States District Court for the District of Nebraska which adjudged him negligent in allowing a Black Angus heifer to gain access to a public thoroughfare, there to collide with a truck and to cause death and property damage. Nuclear Corp. of America v. Lang, 337 F.Supp. 914 (D. Neb.1972). The District Court refused to grant appellant’s motion for a new trial (unreported Memorandum decision filed August 22, 1972). We affirm that judgment.

Appellant maintains a farming operation north of Norfolk, Nebraska, on land which adjoins United States Highway No. 81 to the east. Appellant raises livestock and in particular Black Angus cattle. Shortly after midnight on the morning of September 3, 1970, after having been absent from the farm for approximately twelve hours, Appellant returned to find an overturned tractor-trailer protruding into his feedlot from the ditch. Forty-five feet south of the truck was a dead, six-hundred pound Black Angus heifer, which Appellant conceded belonged to him. Arriving on the scene a short time later, Corporal Hoeman of the Nebraska State Patrol, observed black hair and manure on the bent right front bumper and fender of the overturned truck. His examination of the adjacent highway revealed 281 feet of skidmarks at the northernmost extension of which were black hair and patches of hide.

South of the point of collision, a lane, which serves the south farmstead, enters upon the highway. Surrounding the lane are the feedyard to the north, the catchpen and the pasture to the east, and the pasture to the south. There is a gate which eliminates access to the highway from the lane, but Mr. Lang admitted that it was open the day and night of the accident. There was testimony as to the existence of cattle tracks in the lane but their direction and extent were not clearly established.

Testimony relating to the sufficiency of the fences surrounding the Appellant’s property was conficting. There evidently was an electric fence on the inside of a woven wire-barbed wire fence which surrounded the feedyard. Although Appellant testified that he had inspected the fences on the day before the accident, an employee of the Appellee testified that his post-accident inspection indicated deficient fencing in several places. Mr. Bisping, the Appellee’s traffic manager, testified to his observance of loose and sagging wire fences and of board fences with missing planks in those sections of Appellant’s fence surrounding the south lane, from which there is direct access to the highway.

The Trial Court, in two memorandum opinions, predicated liability on what the Court considered two independent and separate rationales. First, the Court concluded that the Appellant was negligent in leaving open the gate on the south lane leading to the highway when the farm was to be left unattended for a period of time, where it was reasonably foreseeable that livestock could gain access to this area of the lane. Alternatively, the Court held that the Appellant was liable by virtue of the application of the doctrine of res ipsa loquitur.

It is the contention of the Appellant that the logical inferences arising from the evidence are equally consistent with a finding that the heifer escaped through no negligence of the Appellant and that the circumstantial evidence, upon which liability was exclusively grounded, was therefore insufficient to support a verdict. In answer to the Court’s alternative ground, Appellant challenges the invocation of res ipsa loquitur on the basis that the escape of an animal from an enclosure is not such a departure from the ordinary course of events as to raise an inference of negligence.

The doctrine of res ipsa loquitur is a circumstantial evidentiary standard by resort to which a plaintiff can meet his burden of going forward with the evidence and thus reach the trier of fact. Asher v. Coca-Cola Bottling Co., 172 Neb. 855, 112 N.W.2d 252, 255 (1961). It is applied to justify an inference of negligence from the fact that an accident occurred and from certain other facts: (1) the fact that the event is of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) the fact that it was caused by an agency or instrumentality within the exclusive control of the defendant; and, (3) the fact that it was not due to any voluntary action or contribution on the part of the plaintiff. W. Prosser, Law of Torts 218 (3d ed. 1964); Nownes v. Hillside Lounge, Inc., 179 Neb. 157, 137 N.W.2d 361, 362 (1965). The doctrine has a weakness, a weakness which is exhibited by the decision of the District Court in this case. It often results in the judicial segregation of res ipsa-type circumstantial evidence from the ordinary circumstantial evidence which is introduced to prove specific acts of negligence. It was this segregation which produced the Trial Court’s alternative holding. But the two types of circumstantial evidence should be considered together, if consistent, to determine whether a plaintiff has met his burden of going forward with the evidence. As stated by Professor Prosser:

(i)t is quite generally agreed that the introduction of some evidence which tends to show specific acts of negligence on the part of the defendant, but which does not purport to furnish full and complete explanation of the occurrence does not destroy the inferences which are consistent with the evidence, and so does not deprive the plaintiff of the benefit of res ipsa loquitur. W. Prosser, Law of Torts 236 (3d ed. 1964).

Thus, the logical inference from the fact that the accident occurred, that it is of a kind which ordinarily does not occur in the absence of someone’s negligence, that it was caused by an agency or instrumentality within the exclusive control of the defendant, that it was not due to any voluntary action or contribution on the part of the plaintiff, combined with the logical inferences arising from the facts tending to show specific acts and omissions of the defendant must be “of such [a] nature and so related to each other that only one conclusion can reasonably be drawn therefrom.” Raff v. Farm Bureau Insurance Co., 181 Neb. 444, .149 N.W.2d 52, 56 (1967).

There is no question that the accident was caused by an instrumentality within the exclusive control of the Appellant, nor is there any question that it was not due to any voluntary action or contribution on the part of the Appellee. The question is whether the accident is of a kind which does not usually occur in the absence of someone’s negligence, and if it is, whether that fact, combined with the logical inferences arising from those facts tending to show specific negligent acts or omissions of the Appellant are “of such a nature and so related to each other” that the only reasonable conclusion that can be drawn is that the accident resulted from defendant’s negligence.

The Trial Court did not directly confront the question of whether this accident is of a kind which ordinarily does not occur in the absence of someone’s negligence. By invoking res ipsa loquitur, however, the Court necessarily concluded that unattended animals do not usually escape their enclosures unless someone was negligent, a conclusion which is supported by an abundance of authority. Mercer v. Byrons, 200 F.2d 284 (1st Cir. 1952) ; Scanlan v. Smith, 66 Wash.2d 601, 404 P.2d 776, 778-779 (Wash.1965) (and eases cited therein); Shepard v. Smith, 74 Idaho 459, 263 P.2d 985 (1953); Bender v. Welsh, 344 Pa. 392, 25 A.2d 182 (1942); Moss v. Bonne Terre Farming & Cattle Co., 222 Mo.App. 808, 10 S.W.2d 338 (1928). Embodied within that conclusion is an expression of judicial attitude with respect to the high standard of care owed highway travellers by abutting livestock owners. Kenney v. Antonetti, 211 Cal. 336, 295 P. 341, 342 (1931). The higher the standard of care, the more compelling is the inference that someone was negligent.

In addition to inferences arising from the fact that the accident occurred, there are also facts tending to show specific negligent acts and omissions from which the accident resulted. Appellant conceded that he had left the gate to the south lane open. Mr. Bisping testified that some of the fencing surrounding the lane was defective. Both Patrolman' Hoeman and Mr. Bisping saw animal tracks in that lane. This combination of circumstances could reasonably give rise to an inference that the accident resulted from either or both of two negligent omissions; (1) failing to maintain fence in a proper state of repair; (2) failing to close the gate to the south lane.

The only evidence adduced by Appellant to counteract this inference is his own self-serving testimony that he had inspected the fences the day prior to the accident, the conclusion of Mr. Lee, an attorney from Minneapolis whose qualifications as an expert in evaluating livestock fencing were never established, that his post-accident inspection of the feedlot fences revealed no place from which a six-hundred pound heifer could have escaped, the testimony of one witness who said that he had never seen escaped livestock in the vicinity of the Lang farm and the testimony of another that he had seen none on September 2, 1970. The undertaking of inspections, however, does not necessarily eliminate the inference of negligence. The defendant-bottler in Asher, supra, presented extensive testimony relating to repeated inspections of bottles of Coca-Cola and the impossibility that the defendant’s acts or omissions caused the injury, but the Court held defendant’s attempt insufficient to rebut the inference of negligence from the fact that a dead mouse was found in one of the bot-ties. The witnesses who testified that they had never seen escaped cattle near the defendant’s premises merely reinforce the conclusion that the escape of livestock is a highly unusual occurrence and does not often happen absent someone’s negligence.

Having found favor with the trier of fact, the Appellee is entitled to have the evidence viewed and considered most favorably to him and he must be accorded the benefit of reasonable inferences therefrom. Benedict v. Eppley Hotel Co., 161 Neb. 280, 73 N.W.2d 228, 230 (1955). The Trial Court concluded that the strong inference arising from the fact that an occurrence, which does' not usually happen in the absence of someone's negligence, was caused by an instrumentality under the control of the Appellant and the inference arising from other facts proven by the evidence were so compelling and so related as to permit only one reasonable conclusion— that Appellant was negligent. That conclusion is supported by substantial evidence.

Affirmed.


author: LAMBROS, District Judge. PECK, Circuit Judge

text:
    James D. HODGSON, Secretary of Labor, Plaintiff-Appellant, v. N. G. KALLAS COMPANY, Defendant-Appellee.
    No. 72-1941.
    United States Court of Appeals, Sixth Circuit.
    Argued April 16, 1973.
    Decided June 14, 1973.
    John W. Peck, Circuit Judge, dissented and filed opinion.

      Sylvia Ellison, U. S. Dept. of Labor, for plaintiff-appellant; Richard F. Schubert, Sol. of Labor, Carin Ann Clauss, Associate Sol., Donald S. Shire, Helen W. Judd, U. S. Dept. of Labor, Washington, D. C., on brief; Aaron A. Caghan, Regional Atty., Cleveland, Ohio.
    Robert E. Swickle, Detroit, Mich., for defendant-appellee; Law Offices of Leonard C. Jaques, P. C., Detroit, Mich., on brief.
    Before PHILLIPS, Chief Judge, PECK, Circuit Judge and LAMBROS , District Judge.

       Honorable Thomas D. Lambros, United States District Judge for the Northern District of Ohio, sitting by designation.

   LAMBROS, District Judge.

The question presented by this case is the meaning of “retail or service establishment,” a phrase used in the exemption provisions of the Fair Labor Standards Act, as it applies to a tax reporting and bookkeeping business. The suit was brought by plaintiff-appellant for alleged violations of the wage, record-keeping and over-time provisions of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the “Act”). The District Court ruled that defendant-appellee’s bookkeeping and tax reporting business came within the interstate commerce requirements of the Act but entered summary judgment for appellee because it determined that appellee’s business was exempt from the Act under the provisions of 29 U.S.C. § 213(a)(2). The Secretary of Labor appeals from that decision and defendant-appellee cross appeals. We affirm in part and reverse in part.

The District Court based its ruling on appellee’s uncontrover.ted affidavit, which established that the business, located in Michigan, served customers coming exclusively from Michigan by “among other things” performing bookkeeping and tax reporting services. According to the affidavit, when the business completed tax reports, it either provided the customers with pre-addressed envelopes for mailing the reports to the Regional Office of the Internal Revenue Service in Cincinnati, Ohio, or it mailed the reports itself. The affidavit further represented that the business’ annual gross income was less than $250,000.

As a preliminary matter, the District Court ruled that, because appellee’s business produced tax reports with the expectation that these reports would be sent to Ohio through the mails, the business came within the interstate commerce requirement of the Fair Labor Standards Act. We affirm this ruling as supported by the clear weight of authority. United States v. Darby, 312 U.S. 100, 117, 61 S.Ct. 451, 85 L.Ed. 609 (1941); Schulte v. Gangi, 328 U.S. 108, 119, 66 S.Ct. 925, 90 L.Ed. 1114 (1946); Hodgson v. Travis Edwards, Inc., 465 F.2d 1050, 1054 (5th Cir. 1972) (petition for cert. pending) (mailing of corporate reports satisfied commerce requirement) ; White v. Wirtz, 402 F.2d 145 (10th Cir. 1968) (producing maps expected to be mailed satisfied commerce requirement); Wirtz v. A. S. Giometti and Associates, Inc., 399 F.2d 738 (5th Cir. 1968) (same).

The major issue in this appeal arises from the District Court’s second ruling that appellee’s bookkeeping and tax reporting business was exempt under 29 U.S.C. § 213(a)(2) from the wage, record-keeping, and overtime provisions of the Fair Labor Standards Act. That statute provides in pertinent part:

“(a) The provisions of sections 6 and 7 shall not apply with respect to (2) any employee employed by any retail or service establishment, more than 50 per centum of which establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located, if such establishment . . . (iv) . . . has an annual dollar volume of sales . . . which is less than $250,000.
“A ‘retail or service establishment’ shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry . . . .” 29 U. S.C. § 213(a)(2).

The District Court correctly ruled that the first two provisions of that exemption, requiring less than $250,000 gross income and requiring that more than half of the business be conducted within the state, were met on the basis of appellee’s uncontroverted affidavits. It next proceeded to decide, on the basis of the affidavits, that appellee’s business met the third requirement of the exemption that the company was a “retail or service establishment” as that term is defined in the 1949 amendment to 29 U. S.C. § 213(a)(2). It is on the basis of this latter determination that we reverse.

In two unanimous opinions written by Justice Harlan, the Supreme Court reviewed the legislative history of that provision and concluded that a business should be classified as a “retail or service establishment” for purposes of the exemption, first, if the sale of particular goods or services was retail in concept and, second (if the answer to the first was affirmative), if the terms or circumstances of the sale made it retail, rather than for resale. Idaho Sheet Metal Works v. Wirtz, 383 U.S. 190, 196-205, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966); Mitchell v. Kentucky Finance Co., 359 U.S. 290, 291-295, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959).

In applying the first prong of the test for the exemption, Justice Harlan relied primarily on analogies to those businesses listed as within the exemption in the legislative history to that provision and on the interpretation given the provision by the Secretary of Labor. Idaho Sheet Metal Works, supra, 383 U.S. at 205, 86 S.Ct. 737. In this case, both the legislative history and the administrative regulations would indicate that appellee’s business does not qualify as retail within the meaning of the Act.

Although the legislative history does not specifically mention bookkeeping and tax reporting services, it does relate that other businesses providing assistance with financial records, such as banks, insurance companies, building and loan associations, and credit companies, are not retail as that term is used in the exemption provision. Idaho Sheet Metal Works, supra at 202, 203, 86 S.Ct. 737; Kentucky Finance Co., supra, 359 U.S. at 292, 79 S.Ct. 756. Moreover, the Secretary of Labor has since the early 1940’s consistently included accountants on his non-exempt list. 29 C.F.R. § 779.317. This early regulation may be accorded additional weight in light of Congressional approval of existing regulations in 1949. 63 Stat. 910, 29 U.S.C. § 208, note.

Although the legislative history and regulations classify financial recording services as non-exempt, appellees urge the Court to rely solely on an “everyday needs” test, such as that applied by the Fourth Circuit in Hodgson v. Centralized Services, Inc., 457 F.2d 824 (4th Cir. 1972). See 29 C.F.R. § 779.318(a). Under such a test, they argue, a bookkeeping and tax reporting service which meets the everyday needs of its customers would be classified with the corner grocery store and the cleaning business as a retail service establishment. However, the Supreme Court has expressly warned against the reliance on this test alone without resort to legislative history:

“The legislative recital of telephone, gas and electric, and credit companies along with a number of others as businesses outside the exemption . . . demonstrates that not everything the consumer purchases can be a retail sale of goods or services. .” Idaho Sheet Metal Works, supra, 383 U.S. at 203, 86 S.Ct. at 746.

Furthermore, the District Court had no facts before it on which to conclude that the bookkeeping services provided met “everyday” needs rather than long-range planning.

Having determined therefore that appellee’s business should not have been classified as retail as that term has been used in the exemption provision, it is unnecessary to reach the second prong of the test which is whether appellee has shown that the services were not for resale. We note in passing that appellee has the burden of showing that bookkeeping services such as those he provides are not resold. Arnold v. Kanowsky, 361 U.S. 388, 394, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960). See 29 C.F.R. § 779.-334 (defining sales of services for resale) .

In applying the exemption provisions of the Fair Labor Standards Act, the courts are required to give a narrow interpretation to the terms therein. Chief Justice Warren stated:

“We have held that these exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit. The three conditions of § 13(a)(2) are explicit prerequisites to exemption, not merely suggested guidelines for judicial determination of the employer’s status.” Arnold v. Kanowsky, supra at 392, 80 S.Ct. at 456.

In this ease, the facts regarding appellee’s business were not sufficient to warrant a conclusion that it came within the retail concept of the exemption. On the contrary, the facts as developed would lend support to a ruling that the appellee’s business is a financial institution such as has been consistently treated as a non-exempt business. The District Court was therefore in error in granting summary judgment for appellee.

We affirm with respect to the District Court’s ruling that appellee’s business came within the interstate commerce requirements of the Act but reverse and remand with instructions to vacate the entry of summary judgment with respect to the District Court’s ruling that appellee’s business came within the “retail and service establishment” exemption to the Act.

PECK, Circuit Judge

(dissenting).

Because I do not conclude that appellee’s business is non-exempt as a financial institution (Mitchell v. Kentucky Finance Company, 359 U.S. 290, 295, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959)), and conclude as did the District Court that it was instead a “retail or service establishment” within the meaning of 29 U. S.C. § 213, I must respectfully dissent. As to the former, I find the analogy to banks, insurance companies, building and loan associations, and credit companies not to be persuasive. As to the latter, while recognizing the burden of proof normally on the operator of a business in this regard (Arnold v. Kanowsky, 361 U.S. 388, 394, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960)), I conclude appellee’s services not to be capable of resale as a matter of law, from which it must follow that its operation could not be other than retail or service, and I would accordingly affirm the judgment of the District Court.

      . That provision approves those regulations “not inconsistent” with the 1949 amendment. The Supreme Court ruled in Mitchell Finance Co. that the regulations providing that the “financial industry” was not retail were consistent with the 1949 amendment. Mitchell Finance Co., supra, 359 U.S. at 292-295, 79 S.Ct. 756, 3 L.Ed.2d 815. See also Brennan v. Great American Discount and Credit Co., Inc., 477 F.2d 292 (5th Cir., 1973).


author: TUTTLE, Circuit Judge:

text:
    Ed J. POLK, on behalf of himself, and all others similarly situated, Plaintiffs-Appellants, v. The STATE BAR OF TEXAS et al., Defendants-Appellees.
    No. 72-2488.
    United States Court of Appeals, Fifth Circuit.
    June 20, 1973.
    As Amended on Denial of Rehearing Aug. 20, 1973.

      Michael N. Buckley, Grand Prairie, Tex., Warren Burnett, Odessa, Tex., James A. Johnston, Edward B. Clout-man, III, Dallas, Tex., for plaintiffs-appellants.
    L. W. Anderson, Dallas, Tex., for def endants-appellees.
    Before TUTTLE, THORNBERRY and DYER, Circuit Judges.
   TUTTLE, Circuit Judge:

On June 27, 1972, a Grievance Committee of the State Bar of Texas, following a plenary hearing, decided to issue an official reprimand of appellant Ed J. Polk for professional misconduct as a result of derogatory statements Polk allegedly made about a district attorney and county judge in Dallas, Texas. Immediately thereafter Polk brought this § 1983 action in the district court seeking to enjoin publication of the reprimand. He alleged, among other things, that the

“defendants exercised their authority in a manner having the clear purpose and effect of depriving plaintiff Polk of his constitutionally guaranteed right to freedom of speech . . .,”

and that this action had a “chilling effect on plaintiff’s future exercise” of his First Amendment rights. The district court dismissed the suit on the basis of the non-intervention doctrine announced in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

Polk noticed an appeal and moved this court for an interim injunction which we denied on the grounds that under the administrative grievance machinery of the State Bar of Texas Polk could prevent publication of the reprimand simply by filing a civil suit to have it set aside in the state district court in the county of his residence. However, we specifically reserved to Polk the right subsequently to try his constitutional claims in federal court. We said,

“[Sjince these rights have been so specifically asserted this order recognizes that being compelled as a practical matter to pursue this administrative appeal to the state district court, appellant has not abandoned his demand for a federal court determination and, on the contrary, he has and may continue to reserve his right to insist hereafter on a federal court determination . . . ”

Chief Judge Brown, writing for the court, concluded,

“What — and all — we determine is that interim relief is not appropriate and whether subsequent relief is will depend on what the situation then is.”

Under the compulsion of our denial of interim relief, Polk filed suit in state court, which action had the effect of staying publication of the reprimand.

The sole issue for decision here is whether it was error for the district court to dismiss Polk’s § 1983 action on the basis of the Younger doctrine. We think it was.

Before consideration of the legal issues involved, we undertake to outline in some detail the procedures for disciplining attorneys in Texas and the nature of the proceeding to which Polk himself was subjected. It is noted that Texas has what is commonly called an integrated bar, that is, every practicing attorney in Texas is required by law to be a member of the State Bar. The State Bar itself is governed by the provisions of the State Bar Act which designates the Bar as an administrative agency with the power to contract and to sue and be sued. This enabling legislation provides that from time to time the Supreme Court of Texas may promulgate rules and regulations pertaining to, among other things, procedures for disciplining wayward members of the Bar, which, if approved by a majority of Texas attorneys, would become binding on each of them. Pursuant to this statutory authority the Supreme Court promulgated, and the Bar approved, a set of rules creating the so-called Grievance Committees, composed of members of the Bar and charged with primary responsibility for handling complaints of misconduct against attorneys. The rules outline the powers and duties of the committees, including procedures for filing of complaints with the committees, investigation of complaints, hearings before the committees, and actions which may be taken by the committees on a complaint.

The committees can take action in one of two ways. First, they may bring proceedings against an attorney by way of formal complaint in the district courts of the state, or second, they may themselves handle the matter administratively, subject to statutory limitations on the sanctions which might be imposed. It is noted that Polk was disciplined in accordance with the latter procedure, that is, through the more or less informal administrative machinery of the Grievance Committees, and thus was never subject to court process.

Moreover, it should be pointed out that while the Grievance Committees are given limited disciplinary powers they are without authority themselves to disbar (or even to suspend) an attorney absent his acquiescence in the committee’s jurisdiction to do so. The State Bar Act specifically provides that disbarment proceedings may be instituted only in the district courts of the state, thus preserving the accused attorney’s rights to trial by jury. Article XII, Section 16 of the Rules thus provides that at the conclusion of an investigation the Grievance Committees are empowered to take action only as follows: (1) Dismiss the complaint against an attorney; (2) Issue a reprimand (public or private); (S) Revoke an attorney’s license or suspend it for a period not to exceed three years where the committee “shall have reason to believe the accused will accept its actions as final,” or (4) Institute formal proceedings against the attorney in a state district court.

In light of this bifurcated system it must be plainly apparent that in Texas disbarment, which is required by statute to be the subject of court process, is treated as differing qualitatively from the lesser sanction of reprimand which may be imposed administratively by a Grievance Committee. We find it unnecessary, then, to reach the question whether a disbarment proceeding actually pending in a Texas state court would be governed by the Younger doctrine of non-intervention. As noted, such a proceeding (which is governed by an entirely different set of rules) was not here involved. Rather, the action of which Polk complains was the decision, already made, of an administrative tribunal, composed of members of the Bar, to reprimand Polk for professional misconduct. This administrative proceeding, of course, could not, absent Polk’s consent, have been a disbarment proceeding inasmuch as the Grievance Committee was otherwise without power to disbar him, and, since the particular committee had already rendered its decision, the matter was not, at the time this suit was brought in federal court, still pending before it.

It is argued, nonetheless, that such a proceeding is “quasi-criminal” in nature and that as a consequence intervention by a federal court is precluded under the Younger doctrine. While we do not, under the law of this circuit, need to decide whether or not this administrative action to reprimand Polk might properly be characterized as a quasi-criminal proceeding, we think it appropriate to comment on the issues thus posed. Appellees point out that the Supreme Court has held that disbarment proceedings, at least for some purposes, may be classified as “quasi-criminal” in nature. Although that decision was based on due process considerations, the “quasi-criminal” designation was nevertheless applied by the Court of Appeals for the Second Circuit in Erdmann v. Stevens, 458 F.2d 1205 (2nd Cir. 1972) to support its conclusion that Younger and its progeny barred federal court relief with respect to a pending disbarment proceeding in the state courts of New York. It does not follow from that, however, even were we to accept the reasoning of the Erdmann court, that the same conclusion is dictated where a minor disciplinary sanction is sought to be imposed by an administrative tribunal under an entirely separate procedure than that required for disbarment, which in Texas is cognizable only in state court, or, in short, that simply because a disbarment proceeding is characterized as quasi-criminal, any and every other disciplinary action against an attorney, no matter the gravity or method of imposition, should likewise be characterized as quasi-criminal. More important, however, is the very basic principle that whatever else might be said about the doctrine of comity, as comprehended by the Younger line of cases, it is fundamental that its applicability necessarily must be determined by reference to state law. Here there was no finding by the district court that under Texas law proceedings before a Grievance Committee are criminal in nature. Indeed, the Texas courts have consistently held that even disbarment proceedings, which are governed by rules of civil procedure, are civil rather than criminal. Houtchens v. Mercer, 119 Tex. 244, 27 S.W.2d 795 (1930); Houtchens v. State, 63 S.W.2d 1011 (Tex.Com.App.1933); Burns v. State, 76 S.W.2d 172 (Tex.Civ.App.1934).

However, we need not further reflect upon the matter for in this circuit, at least, the appellation is not determinative of the ultimate issue whether the Younger rule applies. As this court said in Palaio v. McAuliffe, 466 F.2d 1230, 1232-1233 (5th Cir. 1972),

“We believe, however, that application of the principles of Younger should not depend upon such labels as ‘civil’ or ‘criminal,’ but rather should be governed by analysis of the competing interests that each case presents. Thus, in Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971), this court held that Younger did not bar a suit seeking relief from enforcement of a city ordinance prohibiting political activity by firemen; the court’s conclusion rested not on the view that enforcement of the ordinance (dismissal of firemen who violated it) was ‘civil’ in nature, but rather on the ground that federal intervention in that case could have no effect on an ongoing state proceeding, either civil or criminal. [Citation omitted]. On the other hand, when federal anticipatory relief will significantly affect a state’s enforcement — by whatever means — of its criminal laws, then such relief is barred by the strong policy of noninterference, unless the plaintiff can meet the heavy burden of proof that Younger imposes.”

We concluded that “the principles of Younger bar federal intervention in a state civil proceeding that is an integral part of a state’s enforcement of its criminal laws.”

Under this test we think it abundantly clear that when a Grievance Committee, by administrative action, undertakes merely to upbraid a local attorney for conduct deemed to be violative of the ethical standards of the profession, as provided in the Canons of Ethics, it is not in any sense acting in aid of the enforcement of Texas' criminal laws.

Such administrative action is properly viewed as a simple matter of policing the legal profession to insure that the high standards of professional integrity are maintained.- We see nothing in this sort of regulatory activity which might be construed as an integral part of Texas’ enforcement of its criminal laws or “as part of a comprehensive scheme for the enforcement of the Texas Penal Code.” Duke v. Texas, 5 Cir., 477 F.2d 244 decided April 20, 1973.

The only remaining question is whether the federal court should stay its hand in this case for failure to exhaust available state remedies. With respect to this question we note that Polk, in the first instance, was subjected to administrative process by a Grievance Committee. On the assumption that we might require exhaustion of administrative remedies as a prerequisite to maintaining a § 1983 action in federal court, there is no question here, even if required of him, that Polk has exhausted his administrative remedies. In Stevenson v. Board of Education of Wheeler County, Georgia, 426 F.2d 1154, 1157 (5th Cir. 1970) we required

“such prior reference to local institutional authorities as may be necessary to assure that the action complained of is final within the institution in the sense that it is ripe for adjudication.” (Emphasis supplied).

Here, the institution is the State Bar of Texas but there is no provision for review of the decision by the Grievance Committees within the institutional framework of the State Bar. Since further recourse thereto would have availed Polk nothing, the decision to reprimand him was “final within the institution.” Thus, within the language of Stevenson the action was “ripe for adjudication.”

The rules, of course, provide:
“If the accused shall deem the reprimand unwarranted, he may, within ten days after delivery or mailing thereof, file suit in the district court of the county of his residence to set same aside, failing which the reprimand shall become final . . .”
Article XII, Section 16(b), Rules Governing the State Bar of Texas.

However, this proviso in no way affects the finality of the administrative decision. Properly construed this ten day proviso simply affords a remedy in state court and gives the accused individual ten days within which to take advantage of it. But the availability of such a remedy cannot be exclusive of any federal remedy Polk might have. As this court said in Hobbs v. Thompson, 448 F.2d 456, 461 (5th Cir. 1971),

“Exhaustion of adequate state remedies as a prerequisite to a federal court considering a case on its merits is, in the words of Judge Wisdom, ‘a jurisdictional or a pseudo-jurisdictional requirement.’ Moreno v. Henckel, 431 F.2d 1299 (5th Cir. 1970). Usually raised in the context of administrative remedies, some commentators have urged that a form of the doctrine be extended to state judicial remedies in cases arising under the Civil Rights Act of 1871, 42 U.S.C.A. § 1983, the cause of action upon which the present case is based. [Citations omitted]. However, as we specifically held in Hall v. Garson, 430 F.2d 430 (5th Cir. 1970), and reaffirmed in Moreno v. Henckel, supra, based upon a reading of Monroe v. Pape, 365 U.S. 167 (1961), 81 S.Ct. 473, 5 L.Ed.2d 492, exhaustion of state judicial remedies is not a prerequisite to the invocation of federal relief under § 1983 since the cause of action established by that statute is fully supplementary to any remedy, adequate or inadequate, that might exist under state law.”

Thus, having first brought this action in federal court, Polk is entitled to maintain it in this forum. We reaffirmed this principle of law in our recent case of Duke v. Texas, supra, where we said:

“It is a time-tested rubric of our federalism that:
‘Where a state court and a court of the United States may each take jurisdiction, the tribunal which first gets it holds it to the exclusion of the other, until its duty is fully performed and the jurisdiction invoked is exhausted; and this rule applies alike in both civil and criminal cases.’ Taylor v. Taintor, 1873, 16 Wall. (83 U.S.) 366, 370, 21 L.Ed. 287, 290.
This principle is an integral part of the principles of federalism enunciated in Younger.’’

Appellees urge finally that the federal court should abstain in this case under the traditional principles of abstention. Without venturing deep into the abstention maze, we think it sufficient to say that Polk’s constitutional claims would not be fully resolved by a determination in his favor of questions of state law. Abstention by the federal court, therefore, would be inappropriate.

Reversed and remanded to the district court for further proceedings not inconsistent with this opinion.

      . Article XII, Section 16(b) of the Rules Governing the State Bar of Texas provides :
      “If the accused shall deem the reprimand unwarranted, he may, within ten days after delivery or mailing thereof, file suit in the district court of the county of his residence to set same aside, failing which the reprimand shall become final . . .”

      . Article 320a-l, 14 Vernon’s Tex.Civ. Stat.Ann., Volume 1A.

      . Section 2 of tlie Act provides:
      “There is hereby created the State Bar, which is hereby constituted an administrative agency of the Judicial Department of the State, with power to contract with relation to its own affairs and which may sue and be sued and have such other powers as are reasonably necessary to carry out the purposes of this Act.”

      . Sections 3 and 4, Article 320a-l, 14 Vernon’s Tex.Civ.Stat.Ann., Volume 1A.

      . Rules Governing the State Bar of Texas.

      . See Rules Governing State Bar of Texas, Article XII, Sections 21-31; Arnett v. State, 304 S.W.2d 386 (Tex.Civ.App. 1957).

      . Section 5 of the Act provides :
      “The Supreme Court of Texas shall not adopt or promulgate any rule[s] or regulation[s] abrogating the right of trial by jury in disbarment proceedings . . . ”
      Section 6 then provides:
      “No disbarment proceedings shall be instituted against any attorney except in the district court located in the county of such attorney’s residence

      . This third proviso thus requires in effeet that the accused attorney consent to the committee’s jurisdiction for disbarment purposes, and to that end Section 20 of Article XII provides a boilerplate form for registering such consent.

      . In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968).

      . In Geiger v. Jenkins, 316 F.Supp. 370 (1970), aff’d., 401 U.S. 985, 91 S.Ct. 1236, 28 L.Ed. 525 (1970), which involved a license revocation proceeding pending before the Georgia State Board of Medical Examiners, the three-judge federal court looked to the law of Georgia to determine whether such proceedings were criminal in nature. Having ascertained that under state law license revocation proceedings were indeed considered criminal proceedings the court refused to intervene in the pending action. This decision was summarily affirmed by the Supreme Court. Subsequently the Court, in the recent case of Gibson v. Berryhill, 411 U.S. 564, 93 S. Ct. 1689, 36 L.Ed.2d 488 (1973), was confronted with the question whether the Geiger decision controlled a similar case involving the Alabama State Board of Optometrists, which, it was alleged, was unconstitutionally constituted. One of the bases for distinguishing the Geiger case was that “there is no judicial finding here as there was in Geiger that under applicable state law license revocation proceedings were quasi-criminal in nature.” 93 S.Ct. at 1697.

      . We reiterate that we do not reach nor intimate any views as to what might be the proper disposition of this ease in the event that the action complained of was the subject of a pending court action brought by a Grievance Committee.

      . An additional reason for denying the application of Younger here lies in the nature of proceedings before a Grievance Committee. Under proper circumstances, of course, federal courts will pay the same deference to proceedings of state administrative bodies as they will to those in state courts, Gibson v. Berry-hill, supra, but whether in any given ease this should be done depends on an “analysis of the competing interests that each case presents,” as Palaio requires. Under Texas law, which we are obliged to observe,' it has been held that because a Grievance Committee has authority “not only to hear but to decide the matters coming before it,” it is deemed, for certain purposes, as exercising quasi-judicial powers. McAfee v. Feller, 452 S.W.2d 56, 57-58 (Tex.Civ. App.1970). This characterization, however, is not dispositive of the Younger issue, for in any particular case a Grievance Committee may decide to assume a prosecutorial role, in the stead of the local district attorney, against the accused in state court. Arnett v. State, supra, n. 7. Thus, it would appear that the functions of Grievance Committees are not considered as being in pari materia with court functions. As one Texas court put it:
      “The Committee is an investigating body. The aim of its inquiry is to collect and assemble facts and information that will enable the Committee to take such future action as it may deem expedient for the public welfare. [Citation omitted]. The Grievance Committee is not designed or equipped by the rules and regulations of the State Bar Act to conduct a trial.” Smith v. Grievance Committee, 475 S.W.2d 396, 399 (Tex.Civ.App.1972).

      . In Gibson v. Berryhill, supra, n. 11, the Court, in upholding the decision of the federal district court to consider the constitutional claims of the plaintiff, noted, “nor . . . would a different result be required simply because judicial review, de novo or otherwise, would be forthcoming at the conclusion of the administrative proceedings.” 41 L.W. at 4580. The same principle is applicable here.


author: PER CURIAM:

text:
    The UNITED STATES of America, Appellee, v. Joseph JEFFERSON, Jr., Appellant.
    No. 73-1195.
    United States Court of Appeals, Fourth Circuit.
    Submitted May 30, 1973.
    Decided June 27, 1973.

      R. R. Ryder, Richmond, Va., on brief for appellant.
    Brian P. Gettings, U. S. Atty., and Dennis Dohnal, Asst. U. S. Atty., on brief for appellee.
    Before BOREMAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges.
   PER CURIAM:

Joseph Jefferson, Jr., a previously convicted felon, appeals from his conviction by the court, after waiver of jury trial, of possession of a firearm which had traveled in interstate commerce, in violation of 18 U.S.C. App. § 1202(a). On appeal Jefferson contends that the district court erred in denying his motion to suppress evidence of the .32 caliber hand gun on which his conviction was based because the gun was allegedly seized in violation of his fourth amendment rights. We find this contention without merit and affirm the conviction.

At the October 30, 1972 hearing on Jefferson’s motion to suppress, officer Powell of the Henrico County Police Department testified that at approximately 11:00 p. m. on August 14, 1972, he was told by a person, previously found to be a reliable informant, that Jefferson was carrying a concealed weapon in a shoulder holster. Powell conveyed this information to officer Millikin of the Richmond Police Bureau and later that night the two officers, upon observing Jefferson’s moving vehicle, effected a stop by use of a warning siren and flashing red lights. Millikin testified that after both the police car and Jefferson’s car had come to a stop he got out of the police car and approached Jefferson’s car from the left; before he reached Jefferson’s car Jefferson opened the driver’s door with his left hand and simultaneously with his right hand pulled a pistol from his waistline and placed it on the ash tray of the vehicle. After observing Jefferson lay the pistol on the ash tray Millikin placed Jefferson under arrest on a state charge of carrying a concealed weapon. The state charge was subsequently dismissed and this federal prosecution followed.

At the time the two officers stopped Jefferson their avowed purpose was not to make an arrest but to question him concerning the tip Powell had received. The Supreme Court recognized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” 392 U.S. at 22, 88 S.Ct. at 1880. See Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Stone v. Patterson, 468 F.2d 558 (10th Cir. 1972); United States v. Brumley, 466 F.2d 911 (10th Cir. 1972); United States v. Harflinger, 436 F.2d 928 (8th Cir. 1970), cert. denied, 402 U.S. 973, 91 S.Ct. 1660, 29 L.Ed.2d 137 (1971).

The investigatory stop executed in the present ease constituted a seizure of Jefferson’s person, United States v. Jackson, 448 F.2d 963 (9th Cir. 1971), and to be valid must have satisfied the reasonableness requirement of the fourth amendment. Terry v. Ohio, supra. In Terry the Supreme Court enunciated a standard for evaluating the reasonableness of a police officer’s action in effecting a personal seizure which falls short of an arrest, that is, “[W]ould the facts available to the officer at the moment of the seizure . . . ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” 392 U.S. at 21-22, 88 S.Ct. at 1880.

Applying this standard in the present case we conclude that the information supplied by an informant whose tips had been found by Powell to have been reliable in previous cases was sufficient to justify the officers’ subsequent investigatory stop of Jefferson’s vehicle.

Having first concluded that the stopping of Jefferson’s car was lawful, we hold that officer Millikin’s observation, from outside of Jefferson’s car, of Jefferson removing a pistol from his person and placing it in the ash tray justified seizure of the gun under the plain view doctrine, since the object was in the plain view of Millikin who was rightfully in position to have that view. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); United States v. Gulledge, 469 F.2d 713 (5th Cir. 1972). Therefore, the motion to suppress was properly denied and the admission of the gun into evidence was not error.

The contention raised by appellant has been considered in remarkably similar cases in the Fifth, Seventh, Eighth and Ninth Circuits. United States v. Bright, 471 F.2d 723 (5th Cir. 1973); United States v. Weatherford, 471 F.2d 47 (7th Cir. 1972); Orricer v. Erickson, 471 F.2d 1204 (8th Cir. 1973); United States v. Diamond, 471 F.2d 771 (9th Cir. 1973). The disposition of this case is in accord with the decisions in those cases.

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

Affirmed.


author: JOHN R. BROWN, Chief Judge:

text:
    Larry PAYNE, Plaintiff-Appellant, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellee.
    No. 73-1336
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 5, 1973.

      Hugh W. Thistlethwaite, Opelousas, La., for plaintiff-appellant.
    Donald E. Walter, U. S. Atty., Shreveport, La., for defendant-appellee.
    Before JOHN R. BROWN, Chief Judge, DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   JOHN R. BROWN, Chief Judge:

This appeal tests the corectness of the administrative determination that claimant was not disabled on December 31, 1962, when his insured status under the disability provisions of the Social Security Act expired. In evaluating the application of June 9, 1970, the .Secretary of Health, Education and Welfare determined that through December 31, 1962 the plaintiff had no impairment or impairments of sufficient significance to have prevented substantial gainful activity for a continuous period of at least one year. In an action brought under § 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g) the United States District Court for the Western District of Louisiana entered summary judgment in favor of the Secretary. We reverse.

The usual standard applied in these cases is that “. . . the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . .”. Richardson v. Perales, 1971, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842; Hart v. Finch, 5 Cir., 1971, 440 F.2d 1340. The review by the Court is not a trial de novo and the function of the Court is not to reweigh the evidence or to substitute its judgment for that of the Secretary. The role of the Court is solely to determine if there is substantial evidence to support the Secretary’s decision. Goodman v. Richardson, 5 Cir., 1971, 448 F.2d 388; Richardson v. Richardson, 5 Cir., 1970, 437 F.2d 109; Brown v. Finch, 5 Cir., 1970, 429 F.2d 80; Rome v. Finch, 5 Cir., 1969, 409 F.2d 1329. Resolution of conflicts in the evidence, including conflicting medical opinions and determinations of credibility are not for the courts; such functions are solely within the province of the Secretary. Grant v. Richardson, 5 Cir., 1971, 445 F.2d 656; Martin v. Finch, 5 Cir., 1969, 415 F.2d 793; Stillwell v. Cohen, 5 Cir., 1969, 411 F.2d 574; Hayes v. Celebrezze, 5 Cir., 1963, 311 F.2d 648; Page v. Celebrezze, 5 Cir., 1963, 311 F.2d 757.

Our review of the record in this case, the whole record, leaves us unable to conclude here that the Secretary’s decision was so supported by substantial evidence. We are propelled to this conclusion in the main because of a conspicuous absence of credibility choices in existence during the decisional processes which finally culminated in the Secretary’s decision. That the claimant was afflicted with severe rheumatoid arthritis and, as such, totally disabled at the time of the bringing of this action and thereafter is undisputed. Neither is it disputed, nor could it be, that claimant’s arthritic condition was diagnosed on several occasions prior to the December 31, 1962 expiration of his insured status. Doctor Mims Mitchell, the Perales consultant at the hearing held on July 8, 1971, acknowledged a medical report prepared by Doctor Gremillion on April 6, 1961 which concluded that, at that time, claimant was totally disabled. The hearing examiner’s consultant also alluded to a subsequent medical report prepared by Doctor DeBlanc, the claimant’s personal physician, which asserted that claimant was treated for his arthritic condition prior to December 31, 1962. The temporal connexity between claimant’s physical condition at the time of the 1971 hearing and his pre-1963 condition is weighted not insignificantly by additional undisputed, indeed indisputable, interina treatments for arthritis. It was the admitted judgment of this consultant that the claimant’s medical reports were more clinically compatible with progressive rheumatoid arthritis rather than gouty arthritis, as various clinicians had theretofore speculated. Additionally, Doctor Mitchell testified that, in his opinion, it would be correct to state that the rheumatoid arthritis dated back to 1961.

It is our conclusion that the evidence adduced in claimant’s favor was such that' a reasonable mind might accept as adequate to support a conclusion. The same cannot be said for the conclusion actually arrived at by the Secretary. In arriving at this conclusion, we make not a credibility choice as none of claimant’s evidence was refuted. Here the Perales consultant at the hearing on the merits went far toward proving claimant’s ease. The permissible inferences which must be drawn from these evidentiary facts, after confirmation by the consultant, were then apparently disregarded by the hearing examiner. For this reason, we cannot conclude that the decision of the hearing examiner as affirmed by the Secretary and the trial court, was supported by substantial evidence.

We would emphasize one thing very strongly. The issue was whether claimant was statutorily disabled as of December 31, 1962. The record shows that his condition had been diagnosed as rheumatoid arthritis and that he was disabled prior to that date. No medical evidence contradicts that and the medical consultant agreed, that in the light of consistent post-1962 medical reports this initial diagnosis of 1962 was correct and the condition was continuing. In attaeking the claim all the Secretary does is complain that at the time of the diagnosis, which has proved correct by time and consistent medical opinion, a number of tests had not yet objectively demonstrated its existence. But this is not required if, as was the case here, time and subsequent medical opinion confirms with no substantial question the accuracy of the pre-1962 opinion, its disabling and continuing character. This is one of the rare eases in which the administrative decision is not supported. See Hart v. Finch, supra,; cf. Kirkland v. Weinberger, 5 Cir., 1973, 480 F.2d 46.

Reversed and remanded.

      . By reversing and remanding we express no opinion as to the retroactivity of the disability insurance benefits. Our holding here is limited to our inability to conclude that the Secretary’s decision that claimant was not disabled within the meaning of the Social Security Act at any time through December 31, 1962 was supported by substantial evidence.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jay E. MILLER, Defendant-Appellant.
    No. 73-1425
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 27, 1973.
    Rehearing Denied July 27, 1973.

      J. W. Blair, Richardson, Tex. (Court appointed), for defendant-appellant.
    Frank D. McCown, U. S. Atty., Ft. Worth, Tex., Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., for plaintiffappellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

       Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

This is an appeal from a judgment of conviction entered by the District Court without a jury, finding Miller guilty on an indictment which charged him with possessing 351.5 grams of heroin with intent to distribute the same, in violation of 21 U.S.C. § 841(a) (1).

Prior to the trial, the District Court conducted a hearing on the appellant’s motion to suppress the heroin which was taken from him by Security Officer Sinks at Dallas Love Field Airport. On this appeal, appellant Miller contends that the District Court erred in failing to grant the motion to suppress and, thus, in admitting the heroin into evidence; that the heroin was improperly admitted in evidence since the airport search was only for weapons; and that the in camera testimony of the airline employee out of the presence of the defendant-appellant violated his constitutional right to confront witnesses.

The search and seizure attacked by appellant on this appeal occurred at Love Field Airport, Dallas, Texas, during a pre-flight security check. Ticket Agent Mead of American Airlines testified that on October 11, 1972, at Love Field he determined that Miller met the criteria provided by the Federal Aviation Agency “Profile” as a potential skyjacker, and that he so notified United States Customs Security Agent Sinks. Sinks testified he informed appellant Miller that a security check was needed and that he (Miller) had a right to refuse such a search and to take his bags and leave the airport. Sinks testified that Miller nevertheless consented to the search. During the search of defendant’s small carry-on bag, Sinks found the heroin substances in cellophane paper.

At the hearing before the District Court, Miller denied consenting to the search by Sinks, but the District Court found from the testimony of Agent Sinks that appellant did consent to the search. The question of consent was for the District Court as the fact finder, and it follows that there was no error in the District Court’s refusal to suppress. United States v. Mather, 5 Cir. 1972, 465 F.2d 1035. Voluntariness is to be determined from all the surrounding circumstances and the record in the case at hand demonstrates ample basis for the District Court’s determination. See Schneckloth, Superintendent v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854, 1973.

Appellant’s assertion that an airport security search must be limited to search for weapons is without merit. This court in United States v. Moreno, 5 Cir. 1973, 475 F.2d 44, affirmed the constitutional propriety of an airport search and seizure, the fruits of which resulted in Moreno’s arrest and conviction under 21 U.S.C. § 841(a)(1), for unlawful possession of heroin with intent to distribute.

The final contention of Miller that allowing the airline employee Mead to testify out of appellant’s presence that he fit the FAA “Profile” was a denial of his constitutional right to confront witnesses is without merit. In considering this issue, it should be noted that while Miller was excluded from the in camera proceeding, appellant’s counsel was present and cross-examined witness Mead. Consideration of the law applicable to the record before this court clearly establishes that there was no error with respect to this in camera proceeding. See United States v. Slocum, 3 Cir. 1972, 464 F.2d 1180, and United States v. Bell, 2 Cir. 1972, 464 F.2d 667.

The judgment of the District Court is Affirmed.


author: PER CURIAM. McCREE, Circuit Judge

text:
    Nathaniel BURDETTE, Petitioner-Appellant, v. Claude S. NOCK, Jr., Youth Division Executive, et al., and United States Board of Parole, Respondents-Appellees.
    No. 72-1842.
    United States Court of Appeals, Sixth Circuit.
    Argued June 4, 1973.
    Decided June 29, 1973.
    McCree, Circuit Judge, concurred in part, dissented in part and filed opinion.

      Keller, Cohn, Downs & Svenson, by Edward M. Keller (Court Appointed), Detroit, Mich., on brief for petitioner-appellant.
    Barry Blyveis, Asst. U. S. Atty., for respondent-appellee; Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., on brief.
    Before WEICK, EDWARDS and Me-CREE, Circuit Judges.
   PER CURIAM.

Petitioner has appealed from an order of the District Court denying, without a hearing, his application for a writ of habeas corpus.

On November 30, 1954, petitioner was convicted in the District Court of the offense of bank robbery and sentenced to twenty years’ imprisonment, which sentence would expire on July 30, 1974. He was paroled by the United States Board of Parole on February 16, 1968, and was taken into custody by the Michigan state parole officials pursuant to a detainer. He was subsequently paroled by Michigan.

On December 24, 1969, after being paroled by Michigan, petitioner was arrested by Ferndale, Michigan police on charges of “Unlawfully Taking and Using a Motor Vehicle and Carrying a Concealed Weapon Without a Permit.” In his brief filed in this Court, he states:

“Petitioner was arraigned, bond was set, and petitioner was remanded to the Oakland County Jail.”

On January 20, 1970, a Warrant Application was made to the United States Board of Parole, and the Parole Board issued its warrant on January 28, 1970 for retaking of petitioner, who then had 2,536 days remaining to be served on his federal bank robbery sentence. A copy of this warrant was filed with the Oakland County authorities.

In an affidavit filed by petitioner in the District Court, he states:

“That S.P.S.M. had too filed their so-called illegal parole violation warrant; on February 26, 1971, bond was posted and on March 5, 1971, it was picked up by the parole violation detailed Correctional Officers from S.P. S.M. where it was being held by the Oakland County Authorities, on a pending charge.”

Thus it would appear that if these statements are correct, petitioner was detained by the Oakland County authorities not only to answer for the charges of Motor Vehicle and Concealed Weapons violations, but also because of detainers from the Michigan as well as federal authorities for state as well as federal parole violations.

On May 27, 1971, petitioner pleaded guilty to the state charge of Unlawfully Taking Away an Automobile. The concealed weapons charge was dismissed. On July 16, 1971, he was sentenced to one year eleven months to two years’ imprisonment. Petitioner was released from state custody on August 6, 1971, having completed his sentence with credit for preconviction jail time. He was later taken into custody under a federal warrant issued by the United States Parole Board.

On appeal, petitioner contends that the federal warrant should have been executed during the eighteen months when he was confined in the Oakland County jail awaiting trial on the state charges. He asserts that by failing to execute the federal parole violation warrant, the United States Parole Board waived petitioner’s parole violation and lost jurisdiction. We disagree.

The trouble with petitioner’s contention is that the federal warrant was based on an arrest for violation of the state’s criminal laws. In fairness to the defendant he should first be afforded the opportunity to have his case tried before a jury in the state court. The Federal Parole Board also ought not be required to determine the issues of the state charge prior to the trial in the state court. Further, it should be remembered that petitioner was being detained also for a state parole violation.

In any event, this case is governed by our decision in Savage v. U. S. Parole Board, 422 F.2d 1248 (6th Cir. 1970), wherein we held that the parole violation was not waived by failure to execute the warrant, and jurisdiction was not lost.

The judgment of the District Court is affirmed.

McCREE, Circuit Judge

(concurring in part and dissenting in part).

I agree with the determination that the United States Parole Board did not lose jurisdiction by failing to execute the federal parole violation warrant during the eighteen months when appellant was confined awaiting trial on the state charges. However, I would remand the case for a determination, by evidentiary hearing or otherwise, by the district court whether appellant attempted to post bail on the state offense and would have been released by the state authorities but for the federal parole violation warrant.

If appellant would not have been detained for eighteen months awaiting trial on the state charges except because of the federal warrant, he should be given credit for that time against the balance of his federal sentence. This result would be consistent with the clear Congressional policy enunciated in the 1966 Amendment to Title 18 U.S.C. § 3568 that requires the Attorney General to give credit toward service of a sentence for any days spent in custody in connection with the offense or act for which sentence was imposed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Alfred Kanoa BUMATAY, Defendant-Appellant.
    No. 72-2293.
    United States Court of Appeals, Ninth Circuit.
    June 25, 1973.
    Joseph L. Bortin, San Francisco, Cal., for defendant-appellant.
    Robert K. Fukuda, U. S. Atty., William J. Eggers, III, Asst. U. S. Atty., Honolulu, Hawaii, for plaintiff-appellee.
    Before KOELSCH, WRIGHT and TRASK, Circuit Judges.
   PER CURIAM:

Appellant Bumatay was convicted of possession of heroin with intent to dis-' tribute, and of distributing and dispensing heroin, in violation of 21 U.S.C. § 841(a)(1). On this appeal he raises several issues, only one of which we deem of sufficient import to warrant discussion.

Honolulu police officers were engaged in a massive surveillance of one Yaw (appellant’s codefendant below), a known drug addict and pusher. While so engaged, two officers saw Yaw stop his car next to a car occupied by appellant. They testified that appellant passed a white bag to Yaw and that Yaw passed money to appellant. Appellant and Yaw then separated, and the surveillance on Yaw was continued until his arrest about an hour later. A white sack containing 10 ounces of heroin was found on the rear seat of his car, and at that point officers arrested appellant at his home.

Appellant testified in his defense that he had indeed met Yaw that day, but had passed nothing to Yaw, and that Yaw had arranged the meeting to repay a debt of $75. Despite able representation below, the jury disbelieved appellant’s story, finding him guilty as charged. However, appellant now claims that the jury was unable to consider all the evidence bearing on his case.

The day before the trial was to begin, appellant moved for a severance pursuant to P.R.Crim.P. 14(b), on the ground that Yaw, if called to testify, would testify to factual matters that would exculpate Bumatay. In support of his motion appellant submitted an affidavit from Yaw to the effect that at no time during their contact on the day in question did Bumatay pass anything to him.

The sole basis for the motion was that it would be impossible for Bumatay to obtain a fair trial unless he was able to call Yaw as a witness. Appellant made no effort to show that he intended to call Yaw as a witness should severance be granted, or that Yaw would testify if so called. The trial court denied the motion.

We start with the proposition that “[jjoint trials of persons charged together with committing the same offense are the rule, rather than the exception. There is a substantial public interest in this procedure.” Parker v. United States, 404 F.2d 1193, 1196 (9th Cir. 1968).

“The court must weigh, case by case, the advantage and economy of a joint trial to the administration of justice against possible prejudice to a defendant. It need not exercise its discretion by ordering separate trials unless a joint trial is manifestly prejudicial.” United States v. Donaway, 447 F.2d 940, 943 (9th Cir. 1971).

Several circuits have considered the prejudicial effect of being forced to proceed to trial with a codefendant who had exculpatory testimony to give. All have required some showing that the testimony of the codefendant will be forthcoming at the trial before the denial of the motion for severance will be found to be an abuse of discretion.

“The unsupported possibility that such testimony might be forthcoming does not make the denial of a motion for severance erroneous.” United States v. Kahn, 381 F.2d 824, 841 (7th Cir. 1967); United States v. Johnson, 426 F.2d 1112 (7th Cir. 1970); but see United States v. Echeles, 352 F.2d 892 (7th Cir. 1965). “The bare assertion that [defendant] could not call either co-defendant as a witness does not warrant reversal on the theory that if he could he would have done so.” Brown v. United States, 126 U.S.App.D.C. 134, 375 F.2d 310, 317 (1966); see also Smith v. United States, 385 F.2d 34 (5th Cir. 1967); United States v. Withers, 303 F.Supp. 641 (N.D. Ill.1969).

We have considered this issue before, and have held that “[w]hen there has been insufficient showing that the codefendant would actually testify at a severed trial, the district court has not abused its discretion by refusing to grant the motion.” United States v. Lucas, 453 F.2d 141, 144 (9th Cir. 1971). See also Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970) (setting forth the relevant areas of inquiry on a motion to sever).

In the instant case, appellant made no showing whatsoever that he would call his codefendant were he to be tried separately, much less that the codefendant would testify if so called. Appellant having failed to meet his burden on this issue, we find no abuse of discretion in the trial court’s denial of the motion for severance.

Thfe judgment is affirmed.


text:
    OZARK MILLING COMPANY, INC. a/k/a Ozark Milling-, Inc., Appellant, v. ALLIED MILLS, INC., Appellee.
    Nos. 72-1751, 73-1048.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 16, 1973.
    Decided June 22, 1973.
    Rehearing Denied July 23, 1973.
    Richard Hipp, Fayetteville, Ark., for appellant.
    Thomas B. Burke, Fayetteville, Ark., for appellee.
    Before MATTHES, Chief Judge, and MEHAFFY and STEPHENSON, Circuit Judges.
   PER CURIAM.

Ozark Milling Company, Inc. appeals from an order granting summary judgment in favor of Allied Mills, Inc. in an action for breach of an oral contract. The facts are fully reported at 349 F. Supp. 553 (W.D.Ark.1972) and will not be restated.

Ozark contended below that it agreed to become a distributor of hog feed for Allied and in turn severed its relationship with its present feed supplier because Allied’s agents promised that Allied would: (1) establish a nearby warehouse to facilitate feed deliveries; (2) provide more liberal financing terms for Ozark’s hog farmer-customers than did Ozark’s present supplier; and (3) provide more efficient servicing of Ozark’s customers. Allied allegedly failed to perform any of its promises, causing Ozark loss of customers and goodwill. Allied denied the existence of the alleged oral contract. In granting summary judgment the trial court found that the deposition of Baker, Ozark’s president, established “beyond question that there was no contract of any kind entered into between plaintiff and defendant.” 349 F.Supp. at 560.

Rule 56 of the Federal Rules of Civil Procedure provides for the entry of summary judgment where the record discloses that there exists no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law. Summary judgment is an extreme remedy, one which is not to be entered unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances. Rotermund v. United States Steel Corporation, 474 F.2d 1139, 1143-1144 (CA8 1973); Luick v. Graybar Electric Company, Inc., 473 F.2d 1360, 1362-1363 (CA8 1973); Cervantes v. Time, 464 F.2d 986, 993 (CA8 1972) and Traylor v. Black, Sivalls & Bryson, Inc., 189 F.2d 213 (CA8 1951).

A thorough review of the record convinced us that summary judgment is precluded in this case. The depositions clearly disclose the presence of a genuine factual dispute as to the existence of the alleged oral contract.

Baker testified that Allied’s representatives made the alleged promises; that because of the promises he agreed to become a distributor for Allied and that Ozark suffered damages when Allied failed to perform its obligations. Allied’s representative, Cartwright, denied that he had ever promised Baker that a local warehouse would be acquired, but essentially admitted making the other statements Baker claims Ozark relied on in agreeing to become a distributor for Allied. Baker also claims that J. W. Elder, another Allied representative, promised him that a warehouse would be acquired by December 15,1970. The record contains no response by Allied to this allegation.

The burden was on Allied to establish the non-existence of any genuine issue of fact, and all doubts must be resolved against Allied. We conclude that on the record before us a dispute is presented as to the existence of the alleged oral contract. The ultimate question of whether there is a submissible jury issue, must, of course, await appellant’s presentation of its evidence at trial.

Reversed and remanded.

      . Allied did not rely on the Statute of Frauds, see, In re Augustin Bros. Co., 460 F.2d 376 (CA8 1972), but denied the existence of the alleged oral contract. Where the existence of an alleged oral contract is at issue and the evidence is disputed, the question should be resolved by the jury. See International Glass Co. v. Krouse, 282 F. 206 (CA3 1922) and 4 Williston, Williston on Contracts, § 616 (3d ed. 1961). Of., Drainage Dist. No. 1 v. Rude, 21 F.2d 257, 262 (CA8 1927). On the other hand, where the words used by the parties are not in dispute, “the court will deal with the matter in the same way as if the contract was written.” Williston on Contracts, supra at § 616.


text:
    James Delmore DEATON, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1249.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 13, 1973.
    Decided June 29, 1973.

      James D. Deaton, pro se.
    W. H. Dillahunty, U. S. Atty., and John F. Forster, Asst. U. S. Atty., Little Rock, Ark., for appellee.
    Before CLARK, Associate Justice; HEANEY and BRIGHT, Circuit Judges.

       The Honorable Tom C. Clark, Retired Associate Justice of the United States Supreme Court, sitting by designation.

   PER CURIAM.

James Delmore Deaton filed a petition with the district court to vacate a conviction entered on an alleged coerced guilty plea 21 years earlier. Chief Judge Smith Henley denied relief and Deaton brought this appeal. We affirm.

The late Judge Thomas C. Trimble sentenced Deaton in 1951, under provisions of the Federal Juvenile Delinquency Act, 18 U.S.C. § 5031 et seq., to a term of imprisonment for three years.

Deaton, then 17 years of age, was represented by court-appointed counsel. Deaton was paroled in a year but within two weeks was again arrested and charged with armed robbery. He has since pursued a career of crime and has been convicted on several occasions and sentenced to imprisonment for a number of years.

In an affidavit attached to his petition, Deaton states:

I, James Delmore Deaton, the affiant herein, Deposes and says that my attorney of record (name is un-certain) in 1951 before I pleaded to the offence forwhich I was convicted in the United States Dist. Court at Little Rock Arkansas, Did tell me “I have talked to the U. S. Probation officer and he and I talked with the Judge, and Since this is your first offence, if you’ll plead guilty under the Juvanile Act, you will be given a probated sentence.
I plead to the charge and was sentenced to three years.
•* •* # * -X- *
[Errors in original.]

All principal witnesses to the events here in question except Deaton are now dead, i. e., Judge Trimble, the prosecutor, the defendant’s attorney, the probation officer, and the court reporter.

The district court considered Deaton’s belated petition as one seeking coram no-bis relief. The court recognized that adverse consequences flow from this early conviction notwithstanding that the sentence had been served. It noted, however, that a hearing would not be helpful since one might assume that Deaton would testify in conformity with his statements made and attached to his petition, and that no witnesses would be available to the government. The court concluded that in light of the lapse of time and absence of protest over 21 years, petitioner’s word was insufficient to require the extraordinary relief of co-ram nobis.

The record negates allegations of coercion in Deaton’s plea. On November 5, 1951, the date of sentencing, the petitioner signed a written consent to proceedings against him as a juvenile delinquent. See 18 U.S.C. §§ 5032, 5033. As a juvenile delinquent, Deaton qualified for lenient treatment as an offender including opportunity for parole at any time upon a showing of reform. See 18 U.S.C. § 5037.

The Supreme Court has held that guilty pleas made with the assistance of competent counsel shall not be lightly overturned. Brady v. United States, 397 U.S. 742, 758, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 770-771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 797-798, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). We follow that principle here in affirming the district court.

      . The information filed under the. Act charged Deaton with the unlawful interstate transportation of a stolen vehicle.