source: Caselaw Access Project

author: ORIE L. PHILLIPS, Circuit Judge.

license: Public Domain

text:
    KANSAS CITY SOUTHERN RAILWAY COMPANY, a corporation, Plaintiff-Appellant, v. ARKANSAS LOUISIANA GAS COMPANY, a corporation, Defendant-Appellee. FORT SMITH AND VAN BUREN RAILWAY COMPANY, a corporation, Plaintiff-Appellant, v. ARKANSAS LOUISIANA GAS COMPANY, a corporation, Defendant-Appellee.
    No. 72-1369.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Sept. 20, 1972
    Decided March 27, 1973.

      Burton J. Johnson, Oklahoma City, Okl. (Watts, Looney, Nichols & Johnson, Oklahoma City, Okl., on the briefs) for plaintiffs-appellants.
    G. C. Mayhue, Jr., Ada, Okl. (Conn, Mayhue, Kerr & Mayhue, Ada, Okl., on the brief) for defendant-appellee.
    Before PHILLIPS, SETH and HOLLOWAY, Circuit Judges.
   ORIE L. PHILLIPS, Circuit Judge.

The Kansas City Southern Railway Company and the Fort Smith and Van Burén Railway Company brought this action against the Arkansas Louisiana Gas Company. The two railways will be referred to collectively as the Railway Companies.

By the Act of February 27, 1893, the predecessor of the Southern Railway Company was “invested and empowered with the right of locating, constructing, operating, using, and maintaining a railroad, telegraph, and telephone line through the Indian Territory, * * * with the right to construct, use, and maintain such tracks, turnouts, sidings, and extensions as said company may deem its interest to construct along and upon the right of way * * 27 Stat. 487.

The pertinent parts of § 2 of such Act read as follows:

“SEC. 2. That said corporation is authorized to take for all uses of a railroad, telegraph, and telephone line, and for no other purposes, a right of way one hundred feet in width through said Indian Territory, * * * with the right to use additional grounds where there are heavy cuts or fills as may be necessary for the construction and maintenance of the roadbed, * * And provided further, That no parts of the lands herein authorized to be taken shall be leased or sold by the company, and they shall not be used except in such manner and for such purpose only as shall be necessary for the construction and convenient operation of said railroad, telegraph, and telephone line, and when any portion thereof shall cease to be used, such portion shall revert to said nation or tribe of Indians from which the same shall have been taken.”

By the Act of March 3, 1899, 30 Stat. 1368, the predecessor of the Fort Smith Railway Company was “invested and empowered with the right of locating, constructing, owning, equipping, operating, using, and maintaining a railway and telegraph and telephone line through the Choctaw and Creek nations, in the Indian Territory, * *

The pertinent parts of § 2 of such Act read as follows:

“SEC. 2. That said corporation is authorized to take and use for all purposes of a railway and telegraph and telephone line, and for no other purpose, a right of way one hundred feet in width through the said Choctaw and Creek nations * * * Provided further, That no part of the lands herein authorized to be taken shall be leased or sold by the company, and they shall not be used except in such manner and for such purposes only as shall be necessary for the construction and convenient operation of said railroad, telegraph, and telephone lines, and when any portion thereof shall cease to be so used, such portion shall revert to the Choctaw Nation or Creek Nation.”

By the Act of April 26, 1906, 34 Stat. 137, the railroad companies which had acquired railroad rights of way through the Indian Territory were authorized to acquire the fee titles to the lands over which they had rights of way, under rules and regulations to be prescribed by the Secretary of the Interior, at a valuation to be determined by him, but such Act provided that if the railroad companies failed to make payment of the amount so fixed within the time prescribed in the regulations, title thereto “shall thereupon vest in the owner of the legal subdivision” adjoining such rights of way.

It will be observed that in the Act of April 26, 1906, Congress characterizes a railroad right of way as “in the nature of an easement.”

These cases, which were consolidated for trial, had their genesis when the Gas Company constructed 12 gas pipelines under the Railway Companies’ rights of way.

The Gas Company brought a state court condemnation proceeding against each of the Railway Companies to acquire the right to lay 12 gas pipelines under the rights of way of the Railway Companies, but below any part of the rights of way being used for railroad purposes.

Estimated compensation was deposited by the Gas Company in each of the state court condemnation proceedings, and it obtained orders of possession pursuant to which the 12 gas pipelines were constructed. The Railway Companies did not accept such deposits and the Gas Company withdrew them and dismissed the condemnation proceedings without prejudice.

Prior to boring the holes for the gas pipelines, the Gas Company had paid the owners of the servient estates an agreed amount for the right to install gas pipelines underneath the rights of way of Railway Companies.

After it had installed the 12 gas pipelines under the Railway Companies’ rights of way and had dismissed its condemnation proceedings, the Gas Company later installed two larger gas pipelines thereunder.

The standard practice where gas pipelines are laid under a railroad right of way is to dig an open ditch on each side of the right of way, to, but not into the right of way, and then bore a hole under the right of way and beneath any construction or use made of it by the railroad company, from one ditch to the other. That practice was followed with respect to the first gas pipelines constructed under the Railway Companies’ rights of way. However, each of the other two crossings was for larger pipelines and open trenches were dug on the rights of way, and the pipelines laid beneath the surface of the rights of way and beneath any subsurface construction or any use made of the rights of way by the Railway Companies, and were both backfilled. The entrance of the Gas Company onto the surface of the rights of way was of short duration and did not interfere in any way with the use by the Railway Companies of their respective rights of way.

The court found that the installation of the gas pipelines did not interfere in anywise with the Railway Companies’ construction, operation, maintenance or use of their respective railroads, telegraph and telephone lines, cuts, fills, and other structures. That finding is amply supported by the evidence and is not clearly erroneous.

The gas pipelines might have interfered if they had been installed under tracks, in cuts, but that would be such an entirely impractical place to install a gas pipeline that we may assume that none of the pipelines here involved were installed under tracks, in cuts, of the Railway Companies.

In the Southern Railway Company’s action against the Gas Company, the Railway Company alleged in its first cause of action that it had the right to the exclusive possession and occupancy of the 100-foot right of way strip; that without authority, permission or license so to do, the Gas Company in three separate locations dug, excavated and constructed its gas pipelines “over, across and under” the Railway Company’s right of way, and caused the Railway Company damages in the amount of $7,500; and that the Railway Company was entitled to triple that amount by reason of the Gas Company’s wilful trespass.

In its second cause of action, the Southern Railway Company sought punitive damages in the amount of $15,000, by reason of the Gas Company’s alleged intentional, wilful, oppressive, fraudulent and malicious trespass; and in its third cause of action it sought recovery of $7,500, because of the additional expense it had to incur to make proper inspection of the gas pipelines.

In its complaint against the Gas Company, the Fort Smith Railway Company made substantially the same allegations in its three causes of action, and sought to recover the same relief as the Southern Railway Company did in its action against the Gas Company.

The Railway Companies rely strongly on the language of the United States Supreme Court in its opinion in Western Union Telegraph Co. v. Pennsylvania Railroad Co., 195 U.S. 540, 570, 25 S.Ct. 133, 141, 49 L.Ed. 312, reading:

“ * * * a railroad right of way is a very substantial thing. It is more than a mere right of passage. It is more than an easement. We discussed its character in New Mexico v. United States Trust Co., 172 U.S. 171 [19 S.Ct. 128, 43 L.Ed. 407]. We there said (p. 183, 19 S.Ct. 128) that if a railroad’s right of way was an easement it was ‘one having the attributes of the fee, perpetuity and exclusive use and possession; also the remedies of the fee, and, like it, corporeal, not incorporeal, property.’ * * *
“A railroad’s right of way has, therefore, the substantiality of the fee, and it is private property, even to the public, in all else but an interest and benefit in its uses. It cannot be invaded without guilt of trespass. It cannot be appropriated in whole or in part except upon the payment of compensation. In other words, it is entitled to the protection of the Constituion, and in the precise manner in which protection is given. It can only be taken by the exercise of the powers of eminent domain, * *

They also rely on Midland Valley R. Co. v. Sutter, 8 Cir., 28 F.2d 163, 165, and particularly that part reading:

“* * * The decisions of the national courts and of a majority of the state jurisdictions, however, are to the effect that the railroad company is entitled to the exclusive use and possession of its right of way, and that the owner of the servient estate has no right to occupy the surface of the land conveyed for right of way, in any mode, or for any purpose, without the railroad company’s consent. * * *”

It should be noted that the opinion in Midland Valley states that “the owner of the servient estate has no right to occupy the surface of the land conveyed for right of way’’ (italics ours); and that neither of the opinions in such cases passed on the question of the right of the owner of the servient estate to occupy and use the strata of the land conveyed for the right of way, which is below the surface of such land, and also below any of the strata below such surface, used or needed by the railroad company in the construction, maintenance or operation of its railroad; and also where such occupancy and use by the owner of the servient estate will not in anywise interfere with nor in any manner affect the construction, maintenance or operation of its railroad by the railroad company.

Moreover, the opinions in such two cases relied on by the Railway Companies should be read and considered in the light of the particular facts therein involved. That is particularly true here, because such facts differ so materially from the facts involved in the instant cases.

In each of such cases there was invasion of the surface of the railroad’s right of way, and also of strata below the surface, used and needed by the railroad company in the construction, maintenance and operation of its railroad.

In the first case, Western Union went upon the surface of. the land covered by the railroad’s right of way and erected poles, the lower ends of which were sunk into the ground below the surface, as also were stays for guide wires attached to the poles. It attached to the poles wires over which it sent telegraph messages, and it had to occupy the surface from time to time to repair and maintain such structures and wires.

In the second case, the court enjoined the defendant, an oil and gas lessee, from entering on the railroad’s right of way and conducting drilling operations for the discovery of oil and gas and the production thereof, if found in paying quantities. It is clear that for the oil lessee to have conducted such drilling operations, it would have had to enter upon the surface of the land covered by the railroad’s right of way, erect drilling derricks, power plants, sumps for the deposit of material brought up by the drill or pumped up from the drill hole, and to continuously occupy such surface. It is apparent that the drill hole would pass from the surface down through the subsurface strata, a portion of which the railroad company would need for making fills, in constructing drainage ditches, in installing culverts, building bridges and other structures, and installing supports therefor beneath the surface of the land covered by the right of way.

On the other hand, in the instant eases there was no invasion of the surface, except to dig the trenches in which the two larger gas pipelines were laid, lay the same, and backfill the trenches. Such invasion was temporary and of short duration, and did not in any way affect the subsurface strata which the Railway Companies used in the construction, maintenance and operation of their railways. The trial court found, and we agree, that the gas pipelines in no way interfered with the construction, maintenance, operation or use by the Railway Companies, either above or below the surface of the land over which the rights of way were granted.

Each of the Acts of Congress granting the rights of way contained the following language:

“That no parts [part in Act of March 3, 1899] of the lands herein authorized to be taken shall be leased or sold by the company, and they shall not be used except in such manner and for such purposes [purpose in Act of February 27, 1893] only as shall be necessary for the construction and convenient operation of said railroad, * * *>»

And in § 14 of the Act of April 26, 1906, Congress said:

“Provided further, That this section shall not apply to land reserved from allotment because of the right of any .railroad or railway company therein in the nature of an easement for right of way, depot, station grounds, water stations, stock yards or other uses connected with the maintenance and operation of such company’s railroad * * x hut if any such company x x x shall cease to use such land for the purpose for which it was reserved, title thereto shall thereupon vest in the owner of the legal subdivision of which the land so abandoned is a part, * * *.” (Italics ours.)

The foregoing shows that Congress clearly intended that the rights of way granted to railroads and railways through the Indian Territory were to be in the nature of an easement, and that there was both a dominant and a servient estate.

Moreover, this court has considered the rights of the owners of servient estates and those claiming under them, as against the rights of railroads, under rights of way through Indian Territory acquired under Acts of Congress not materially different from the Acts of Congress under which the Railway Companies obtained the rights of way involved in the instant cases, and has consistently held that such rights of way are in the nature of an easement and that the servient estate is in the owner of the abutting fee.

Finally, counsel for the Railway Companies state in their brief:

“The Court correctly ruled that the Railroads owned an easement for railway purposes and that the servient estate under the Railroad right-of-way was owned by the abutting landowners.”

They further state in their brief:

“It is' conceded by the Railroads that under Sec. 14 of the Act of April 26, 1906, 34 Stat. 137, the abutting landowners owned the servient estate under the Railroads right-of-way.”

Of course, a railroad company which acquires a right of way over and through lands of another acquires more than the mere right of passage over such lands. It acquires the right to excavate drainage ditches; to construct beneath the surface supports for bridges and other structures; to erect and maintain telegraph lines and supporting poles with part of the poles beneath the surface ; to construct passenger and freight depots, using portions of the land below them for foundations; to construct signals ; to make fills and cuts to decrease the grades of their rail lines, and to use material from the land covered by the right of way to make such fills; and to construct a roadbed and lay its ties and rails thereon. Hence, it has substantial surface and subsurface rights, which it is entitled to have protected. But in our opinion it cannot deprive the owner of the servient estate or those claiming through such owner from making use of the land in strata below the surface and below substrata which are used or needed by the railroad company, and which in nowise, as in the instant cases, interferes with the construction, maintenance and operation of the railroad.

With a minor exception, the trial court found that the Railway Companies were not entitled to recover any damages. It held that because of the construction of the gas pipelines, the Railway Companies had to make changes in their maps at a cost of $50 per pipeline crossing, and awarded damages to the Railway Companies against the Gas Company on that basis. It entered its judgment accordingly.

For the reasons indicated above, we conclude that the decision of the trial court was in all respects correct, and it is therefore affirmed.

      . Hereinafter referred to as the Southern Railway Company.

      . Hereinafter referred to as the Fort Smith Railway Company.

      . Hereinafter referred to as the Gas Company.

      . Section 14 of the Act of April 26, 1906, in part reads:
      “ * * * Provided further, That this section shall not apply to land reserved from allotment because of the right of any railroad or railway company therein in the nature of an easement for right of way, depot, station grounds, water stations, stock yards or other uses connected with the maintenance and operation of such company’s railroad, title to which tracts may be acquired by the railroad or railway company under rules and regulations to be prescribed by the Secretary of the Interior at a valuation to be determined by him; but if any such company shall fail to make payment within the time prescribed by the regulations or shall cease to use such land for the purpose for which it was reserved, title thereto shall thereupon vest in the owner of the legal subdivision of which the land so abandoned is a part, except lands within a municipality the title to which, upon abandonment, shall vest in such municipality.” (Italics ours.)

      . See St. Louis-San Francisco Railway Co. v. Town of Francis, 10 Cir., 249 F.2d 546, 547-548, and cases therein cited on page 548.


author: CHAMBERS, Circuit Judge:

text:
    Martha ISHAM, Plaintiff-Appellee, v. PACIFIC FAR EAST LINE, INC., Defendant-Appellant.
    No. 72-1438.
    United States Court of Appeals, Ninth Circuit.
    April 9, 1973.
    Rehearing Denied May 11, 1973.

      George L. Waddell (argued), Daniel M. Blumenfeld, William K. Mordock, Jr., Dorr, Cooper & Hays, San Francisco, Cal., W. Scott Barrett, Barrett, Ferentz & Bramhill, Agana, Guam, for defendant-appellant.
    Howard G. Trapp (argued), Trapp, Gayle & Co., Agana, Guam, for plaintiff-appellee.
    Before CHAMBERS, ELY and WALLACE, Circuit Judges.
   CHAMBERS, Circuit Judge:

Martha Isham brought this personal injury action against Pacific Far East Line, Inc. (hereinafter Far East) in the District Court of Guam. Jurisdiction was based on diversity and the Organic Act of Guam, 48 U.S.C. § 1424(a).

Her husband was stationed on Guam while serving in the Navy. In the spring of 1968, Mrs. Isham purchased a passenger ticket to travel on the Far East freighter, the India Bear, from San Francisco, California, to Guam. The India Bear made a stop at Honolulu to take on and discharge cargo.

On May 5, 1968, the India Bear put in at Wake Island. Wake does not have a deep water harbor. Ships lie at anchor offshore, and landing craft (LCM’s) shuttle back and forth between ships and the docks. Wake is under the control of the Federal Aviation Administration (FAA). The FAA also operates the LCM’s that shuttle between the docks and ships at anchor. Far East crew-members who have shore leave and passengers who wish to visit Wake also ride in the LCM’s.

On the evening of May 5, several passengers from the India Bear, including Mrs. Isham, went ashore to visit Wake. Around 10:00 p. m., the passengers and several crew-members boarded the LCM for the return to the India Bear. The LCM was operated by Ichito Nagao, an FAA employee. Shortly after leaving the dock, the LCM struck a barge because of Nagao’s carelessness. Mrs. Isham was thrown forward into the well of the ship. She broke both her wrists and injured her back. After receiving first aid at Wake, she was flown to Guam where she received care and recuperated in a U. S. Navy hospital. She continues to have some discomfort in her right wrist and occasional low back pains. Both ailments respond to aspirin.

A jury awarded her $90,000 for her injuries, a rather handsome amount considering the injuries. Far East has appealed the judgment against it.

We consider the extent of Far East’s duty to provide its passengers at wayports such as Wake with passage ashore. The parties agree that a shipowner owes his passengers a high degree of care. However, a passenger must recover, if at all, because of negligence; the shipowner does not owe a duty to passengers, as he does to seamen, to provide a “seaworthy” vessel. Tullis v. Fidelity & Casualty Co. of New York, 397 F.2d 22 (5th Cir. 1968). Also see The Oregon, 133 F. 609, 618 (9th Cir. 1904).

Mrs. Isham has claimed all along that Far East has a non-delegable duty to provide proper and safe transportation between the India Bear anchorage and Wake Island. In order to recover on such a theory, a plaintiff must first establish the duty, then that duty’s nondelegability.

The basis on which Mrs Isham seeks to establish the duty is the long-established rule that embarking and disembarking are a part of the voyage which the shipowner agrees to provide. In The Valencia, 110 F.2d 221 (D.Wash. 1901), aff’d sub nom Pacific Steam Whaling Co. v. Grismore, 117 F. 68 (9th Cir. 1902), miners traveling to Alaska to seek gold were put ashore at Nome with virtually no facilities for protection and without their baggage and equipment. The court granted them recovery for injuries suffered as a result of exposure to the elements caused by the negligent manner in which the shipowner provided for disembarking.

Where a passenger or cruise vessel puts into numerous ports in the course of a cruise, these stopovers are the sine qua non of the cruise. In such a situation, the shipowner has a duty to exercise a high degree of care in seeing to the safe embarking and disembarking of the passengers. Lawlor v. Incres Nassau S.S. Lines, 161 F.Supp. 764 (D.Mass.1958).

The question in this case is whether Far East had a duty to provide safe passage ashore at Wake. We believe that whether such a duty exists depends ultimately on the totality of circumstances. Cf. Kermarec v. Compagne Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959).

The clearest case for requiring safe passage is presented in The Valencia, supra. Regardless of other factors, any vessel which engages in the carriage of passengers for hire has a duty to provide for embarking and disembarking at the beginning and end of the voyage. In so providing, he must exercise a high degree of care. Similarly, where, as in Lawlor, supra, a passenger cruise ship entices people aboard with the promise of stopovers in exotic ports, the shipowner must see to those passengers’ safe embarking and disembarking in each such port.

In our case, Mrs. Isham purchased passage from San Francisco to Guam on a ship whose primary purpose was transportation of cargo. She was not told that she could expect a pleasure cruise. The India Bear carried a dozen or fewer passengers, and carrying passengers was incidental to the cargo business. The stop at Wake was for the purpose of taking on and discharging cargo. No showing was made that the stop at Wake'was part of the inducement offered her for traveling on the India Bear. Mrs. Isham was not encouraged to go ashore. The craft on which she went ashore and was to return was not owned by Far East. The ship made passage on the boat available to the crew and to such passengers who wished to use it.

We hold that on the facts of this case Far East had no duty to provide passengers with transportation ashore at Wake. As to Mrs. Isham, this was not the beginning or the end of the voyage. Freighter passage is not ordinarily a pleasure cruise. If Far East had made a call at Wake a part of the inducement for passengers to travel Far East, we would have a different case.

Mrs. Isham could have claimed that Far East was negligent in allowing her to use a craft that was known to be dangerous or that was known to be operated carelessly. No such claim was pleaded, and we do not believe that any such claim was raised by the proof. See F.R.Civ.P. Rule 15(b).

On a related ground, Mrs. Isham contended throughout that Ichito Nagao, the LCM operator, was Far East’s agent, and therefore Nagao’s negligence should be imputed to Far East. All the evidence shows that Nagao was employed by and acting in behalf of the FAA. After the judge had instructed the jury, he asked counsel if they had any objections to the instructions or suggestions for further instructions. At the request of counsel for Mrs. Isham, the judge instructed the jury, “If in this ease you should find that the operator of the launch, Mr. Nagao, is negligent in his operation of such launch, that such negligence is imputed to the defendant, Pacific Far East Lines, Incorporated.” The instructions as given almost amounted to a directed verdict for the plaintiff.

There may have been a good Federal Tort claims case based on liability of the FAA, but we cannot transfer its liability to Far East.

The judgment is reversed.

      . While at Wake, Far East ships pay the FAA $30 per day for LCM service.

      . This duty exists for the owner of a freighter that carries passengers only incidentally as well as for the owner of a vessel primarily engaged in the carriage of passengers for hire. The Black Gull, 144 F.Supp. 47 (S.D.N.Y.1956).

      . See Restatement of the Law Second, Torts, §§ 416, et seq. (1965).

      . Mrs. Isham’s ticket contained a provision excluding liability for landings at intermediate stops. The ticket also stated that no launch would be provided at Wake, and that passengers used available facilities at their peril. We intimate no view of the validity of the ticket provisions purporting to exclude liability. See 46 U.S.C. § 183c. We think that the ticket was admissible to show Mrs. Isham’s reasonable expectations.

      . See Miles v. States Marine Lines, 325 F.Supp. 1370 (E.D.Tex.1971),


author:
ORIE L. PHILLIPS, Circuit Judge.
      HOLLOWAY, Circuit Judge

text:
    Robert L. HOECKER, Trustee in Bankruptcy of Anthony Colacci, Bankrupt, Plaintiff-Appellant, v. UNITED BANK OF BOULDER, Administrator C. T. A. of the Estate of Mike Colacci, a/k/a Michael Archangelo Colacci, et al., Defendants-Appellees.
    No. 72-1170.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Sept. 20, 1972.
    Decided March 29, 1973.
    As Amended on Denial of Rehearing April 23, 1973.

      Frederick T. Berhenke, Denver, Colo., for plaintiff-appellant.
    Don P. Stimmel, Boulder, Colo. (Paul A. Dupler, Boulder, Colo., on the brief), for defendants-appellees.
    Before PHILLIPS, SETH and HOLLOWAY, Circuit Judges.
   ORIE L. PHILLIPS, Circuit Judge.

This is an appeal from a judgment dismissing the complaint, D.C., 334 F. Supp. 1080, on the ground that it did not state a claim upon which relief could be granted, in an action brought by Hoecker in his official capacity as trustee of the estate of Anthony Colacei, bankrupt. The defendants were the bankrupt; his brother, Joseph Colacei; his children, Toni Musgrove, Mary Motto, Patty Dondelinger, and Sally Colacei; and the United Bank of Boulder, Administrator C.T.A. of the estate of Michael Colacei, the deceased father of the bankrupt.

For the purpose of deciding the issues presented on this appeal, we must accept as true the facts, but not the conclusions of law alleged in the complaint.

We next set out the facts so alleged:

On March 4, 1970, Mike Colacei died while domiciled in Boulder County, Colorado, leaving a last will and testament by which he devised and bequeathed all of his property to his two sons, Anthony Colacei and Joseph Colacei, in equal shares.

The will provided that should either of the two sons predecease the testator, the share that would have gone to the predeceased son would go to his children, per stripes.

On August 26, 1970, and within one year prior to the time Anthony Colacei filed his voluntary petition in bankruptcy, he executed an instrument which he filed on August 27, 1970, in the District Court of Boulder County, Colorado, the court which had jurisdiction of the estate of the testator. By such instrument, he disclaimed irrevocably the property he otherwise would have received under such will.

At the time of the execution and filing of such disclaimer, there were existing creditors of the bankrupt who had provable claims against the estate of the bankrupt under the Bankruptcy Act.

The bankrupt did not receive fair consideration for the execution and filing of such disclaimer, and in fact, received no consideration therefor.

The fair salable value of the bankrupt’s property, exclusive of the share of the testator’s estate devised and bequeathed to him by the will, was less than the amount required to pay his debts, and without such share he was insolvent.

The trustee sought a decree adjudging that the disclaimer was null and void and the claim of the children of the bankrupt to one-half of the estate which was devised and bequeathed to him was invalid, and requiring the Bank of Boulder to transfer and deliver to the trustee such one-half of the estate, or if the Bank had disposed of such one-half of the estate, requiring it to account to the trustee therefor.

Section 67(d)(2) of the Bankruptcy Act, 11 U.S.C.A. § 107(d)(2), in part here pertinent reads:

“Every transfer made and every obligation incurred by a debtor within one year prior to the filing of a petition initiating a proceeding under this title by or against him is fraudulent (a) as to creditors existing at the time of such transfer or obligation, if made or incurred without fair consideration by a debtor who is or will be thereby rendered insolvent, without regard to his actual intent; * *

Section 1(30) of the Bankruptcy Act, 11 U.S.C.A. § 1(30), reads:

“ ‘Transfer’ shall include the sale and every other and different mode, direct or indirect, of disposing of or of parting with property or with an interest therein or with the possession thereof or of fixing a lien upon property or upon an interest therein, absolutely or conditionally, voluntarily or involuntarily, by or without judicial proceedings, as a conveyance, sale, assignment, payment, pledge, mortgage, lien, encumbrance, gift, security, or otherwise; the retention of a security title to property delivered to a debtor shall be deemed a transfer suffered by such debtor.”

At the time of the death of Mike Colacci and the filing of the disclaimer by the bankrupt, Colorado Revised Statutes 1963, 153-5-43, as amended in 1965, in part here pertinent provided:

“Disclaimer — filing period. — (1) Any person who may be entitled to receive any property * * * under any will * * * shall have the right to disclaim irrevocably the whole or any part of such property * * *
“(2) (a) In the case of an interest receivable under a will * * * if such disclaimer is made in writing and filed in the county court in which the estate is pending not later than six months after such will has been admitted to probate, * * * such disclaimer shall be made retroactive to the decedent's death, and in such case such property * * * so disclaimed shall pass in the same manner as if the person so disclaiming had predeceased such decedent, unless otherwise provided by the will in which case the will shall be controlling.
******
“(5) Unless a disclaimer under subsection (1) of this section is filed or delivered within the six months’ period to make it retroactive to decedent’s death * * * then such disclaimer shall be construed as an assignment of the interest disclaimed to those persons who would be entitled to take had the person disclaiming predeceased such decedent * *

The disclaimer was in writing and was filed in the county court in which the administration of the estate was pending, prior to the expiration of six months after the will had been admitted to probate.

With respect to the meaning of the word “transfer,” as used in § 67(d)(2) of the Bankruptcy Act, 11 U. S.C.A. § 107(d)(2), federal law is controlling.

Moreover, the term “transfer” has been given an extremely broad meaning in the adjudicated cases and has been construed to include every method of disposing of or parting with property or possessions. See Pirie v. Chicago Title and Trust Company, 182 U.S. 438, 21 S.Ct. 906, 45 L.Ed. 1171.

The term “transfer” would include the disclaimer filed by the bankrupt, if the effect of such disclaimer was to transfer from him to his children the property devised and bequeathed to him by the will.

But the right to testamentary disposition and the right to succession by will of property within the jurisdiction of a state exists only by statutory enactment by such state so providing, and may be regulated, limited, conditioned, or wholly abolished by such state.

Hence, the answer to the question we shall next set out, and which will determine the precise issue presented in this appeal, must be derived from a construction of the Colorado statute set out, supra, which is controlling.

That question, then, is whether under such statute, notwithstanding the disclaimer was filed within six months after the will was admitted to probate, one-half of the property that was devised and bequeathed to the bankrupt by the will passed to him when he filed the disclaimer, or passed to him at any other time, so that the effect of the disclaimer was to transfer such one-half from him to his children.

We think it perfectly clear from the language of § 153-5-43(2) (a) of the Colorado statute, set out above, that the Colorado legislature intended that where a beneficiary filed a disclaimer within the six-month period, none of the property disclaimed would pass to or be vested in the disclaiming beneficiary, or would pass from him to his children, but rather that such property would pass directly from the testator to the children.

The Colorado statute plainly states that when property receivable by a person under a will is disclaimed by him by a writing filed within six months after such will is admitted to probate, the property so disclaimed shall pass in the same manner as if the person so disclaiming it had predeceased the testator. That could only mean, under the facts in the instant case, that it would pass directly from the testator to the children.

The correctness of the construction we have placed on that part of the Colorado statute with respect to the effect of a disclaimer filed within the six-month period is made doubly clear by the provisions of § 153-5-43(2) (a) of such statute, with respect to the effect of a disclaimer filed after the expiration of the six-month period.

Section 153-5-43(5) of the Colorado statute provides that if a disclaimer is filed after the expiration of the six-month period, it shall be construed as an assignment of the interest disclaimed to the person who would be entitled to take it, had the person disclaiming predeceased the testator.

We think it all the more clear when § 153-5-43(2)(a) and § 153-5-43(5) are read together that it was the intent of the Colorado legislature to provide that if a disclaimer was filed within the six-month period, it would not operate as a transfer by the person so disclaiming to the persons who would be entitled to the property under the will of the decedent if the person so disclaiming had predeceased the testator, nor as a transfer in any way of any interest in the property disclaimed; whereas, if the disclaimer was filed after the expiration of the six-month period, then and only then would it operate as an assignment of the interest disclaimed to the person or persons who would have been entitled to take it if the person disclaiming had predeceased the testator.

Accordingly, we conclude that under the Colorado statute the disclaimer did not operate as a transfer by the bankrupt of the property disclaimed to his children, and that there was no fraudulent transfer in violation of § 67(d) (2) of the Bankruptcy Act.

For the reasons set forth by the trial court in his order denying the motion of the trustee for leave to file an amended complaint, we hold that such denial was proper.

Affirmed.

HOLLOWAY, Circuit Judge

(dissenting) :

I respectfully dissent.

It is true that testamentary disposition and the rights to succession of property within the jurisdiction of a state are determined by its law and may be regulated, conditioned or abolished by state law. Here, however, the question is whether the disclaimer was a “transfer” within the meaning of § 67(d) (2) of the Bankruptcy Act, 11 U.S.C.A. § 107(d)(2). While the majority opinion recognizes that federal law is controlling as to the meaning of “transfer,” it nevertheless concludes because of intent of the Colorado legislature that a disclaimer filed within the six months’ period would not operate as a transfer, see 1965 Perm.Supp., C.R.S.1963, 153-5-43(2) (a), and because of the relation back provision, that there was no transfer alleged in violation of § 67(d)(2). While the case is not free from doubt, I cannot agree.

To me the question is not one of the nature or extent of rights in property or of devolution of property — matters that state law decides. It is simply whether some power or right recognized by state law was exercised so as to amount to a “transfer” within the broad meaning of the term provided by federal law in § 1(30) of the Act, 11 U.S.C.A. § 1(30). That definition was broadly drawn to include a sale “. . . and every other and different mode, direct or indirect, of disposing of or parting with property or with an interest therein or with the possession thereof . . . .” All technicality and narrowness of meaning were precluded and the word was used in its most comprehensive sense to include every means by which property could pass from the ownership and possession of another. See Pirie v. Chicago Title & Trust Co., 182 U.S. 438, 444, 21 S.Ct. 906, 45 L.Ed. 1171.

The Colorado statute recognizes that there is a limited power in the disclaim-ant to control the passing of his interest in the property during the six months’ period after the will is admitted to probate, as well as later. And if the right of disclaiming is then exercised “. . . such property or beneficial interest so disclaimed shall pass . ” as if he had predeceased the decedent, unless the will provides otherwise. See § 153-5-43(2)(a). Thus under state law there is a power which seems to me to be a “mode, direct or indirect,” of disposing or parting with his interest in the property and hence a transfer.

Moreover, the provision of C.R.S.1963, 153-5-43(5) that a disclaimer made after the six months’ period “shall be construed as an assignment . . . ” is not persuasive to me. Again, we are not concerned with the characterization used in state law but with the meaning of “transfer” as defined in the Bankruptcy Act. What constitutes a transfer “ . . .is necessarily a federal question, since it arises under a federal statute intended to have uniform application throughout the United States.” McKenzie v. Irving Trust Co., 323 U.S. 365, 369-370, 65 S.Ct. 405, 408, 89 L.Ed. 305.

Nor do I feel that the Colorado retro-activity provision concerning this disclaimer made within the six-months’ period should change the result. See § 153-5-43(2)(a). In a case brought under the federal statute providing for avoidance of fraudulent transfers we should not deny relief because of the state provision on relation back. Cf. In re Kalt’s Estate, 16 Cal.2d 807, 108 P.2d 401, 403.

      . McKenzie v. Irving Trust Co., 323 U.S. 365, 369, 65 S.Ct. 405, 89 L.Ed. 305.

      . Demorest v. City Bank Farmers Trust Co.; 321 U.S. 36, 48, 64 S.Ct. 384, 88 L.Ed. 526.


author: J. JOSEPH SMITH, Circuit Judge:

text:
    In the Matter of the Petition for Naturalization of Antal Kovacs. Antal KOVACS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 590, Docket 72-1243.
    United States Court of Appeals, Second Circuit.
    Argued March 21, 1973.
    Decided April 25, 1973.
    Edward L. Dubroff, Brooklyn, N. Y., for petitioner-appellant.
    Joseph P. Marro, Sp. Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., Stanley H. Wallenstein, Sp. Asst. U. S. Atty., of counsel), for respondent-appellee.
    Before SMITH, FEINBERG and MANSFIELD, Circuit Judges.
   J. JOSEPH SMITH, Circuit Judge:

This is an appeal from an order of the United States District Court for the Southern District of New York, the late Edward C. McLean, Judge, denying Antal Kovacs’ petition for naturalization on the ground that “petitioner has failed to establish that he is a person of good moral character.” We find no error and affirm.

The relevant facts are not in dispute. Kovacs is a Hungarian national, who was admitted to the United States for permanent residence in 1959. In 1968, Kovacs submitted an Application to File a Petition for Naturalization with the Immigration and Naturalization Service. The application disclosed that Kovacs had been arrested and convicted on three occasions. The first occurred in 1959, where appellant pleaded guilty to a charge of disorderly conduct arising out of an arrest in a subway men’s toilet, where he was observed engaging in homosexual activity with another adult male. The second occurred in 1960, again in New York, and involved a charge of loitering. The third arose out of an arrest in the men’s room of a public theater in Los Angeles in 1962, again involving homosexual activities.

Kovacs was questioned at length about these arrests by the naturalization examiner. In response to these questions, Kovaes maintained that he was not now a homosexual, had never been one, and had never engaged in homosexual acts other than the manual manipulation that he claimed took place in the two men’s room incidents. He specifically denied ever having committed fellatio.

The hearing examiner then introduced into evidence an affidavit taken from Kovaes in 1962 in Los Angeles. In the affidavit, Kovaes admitted that he had engaged in a large number of homosexual acts, including about fifty acts of fellatio per year since 1959. In the affidavit, Kovaes also consented to an examination by a United States Public Health Service psychiatrist. The hearing examiner introduced a Medical Certificate resulting from that examination, diagnosing Kovaes as a “psychopathic personality — homosexual” and also his Selective Service file, classifying him as a “moral reject” and unfit for military service.

Kovaes admitted signing the affidavit, but claimed that he had not known what he signed, and denied the description of his sexual activities contained therein. He admitted that the interview with the Public Health Service psychiatrist took place, but apparently did not explicitly attack the Medical Certificate. He then introduced the testimony of his former wife and two friends. All attested to Kovaes’ good moral character, and denied that he was a homosexual.

The hearing examiner recommended naturalization. In so doing, he relied heavily upon Petition of Labady, 326 F.Supp. 924 (S.D.N.Y.1971), which held that the naturalization should not be denied simply because the applicant had engaged in private consensual homosexual acts. The examiner noted that there was no proof that Kovaes had engaged in any homosexual acts, public or private, within the statutory five year period of residence immediately preceding his petition, 8 U.S.C. § 1427(a). He went on to note, however, referring to Kovaes’ testimony about prior homosexual proclivities, that “petitioner’s denials in the face of the evidence are incredible indeed, and the Court could reasonably consider such testimony as less than truthful and deny the petition.”

The final hearing was held before Judge McLean on September 13, 1971. Kovaes did not request a trial de novo, as was his right. 8 U.S.C. § 1447(b). The government opposed the petition, relying upon the minutes of the hearing before the examiner. Judge McLean, in a written memorandum, denied the petition, finding, inter alia, that “petitioner’s lack of candor in his testimony before the examiner is in itself incompatible with any reasonable standard of good behavior.”

The Immigration and Nationality Act, 8 U.S.C. § 1427(a)(3), requires that an applicant be a person of “good moral character” at the time of his petition and in the five year period immediately preceding. This standard is fleshed out somewhat by 8 U.S.C. § 1101(f)(6), which provides that “one who has given false testimony for the purpose of obtaining any benefits under this chapter,” does not possess such character.

The general law in this area is quite clear. The burden of proving good moral character is on the petitioner, Berenyi v. District Director, 385 U.S. 630, 637, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967), with any doubts to be resolved against him, id. at 636-637, 87 S.Ct. 666; United States v. Macintosh, 283 U.S. 605, 626, 51 S.Ct. 570, 75 L.Ed. 1302 (1930). See also Tieri v. Immigration and Naturalization Service, 457 F. 2d 391 (2d Cir. 1972). And the false testimony relied upon to establish a lack of good moral character need not be material to the final merits of naturalization, i. e., the government need not show that truthful answers would havq barred granting of the petition. See Petition of Haniatakis, 376 F.2d 728 (3d Cir. 1967). Cf. Berenyi, swpra, 385 U.S. at 637-638, 87 S.Ct. 666.

Under the facts of this case, we agree with Judge McLean that Kovacs failed to discharge his burden. It is true that, as the examiner noted, petitioner’s testimony had “not been proven false.” But the examiner himself found the testimony “unbelievable” and “incredible indeed,” and correctly noted that the district court could deny the petition on these grounds. Yet, despite these findings, Kovacs did not subject his credibility to reexamination by Judge McLean through a trial de novo, as was his right. Consequently, the record that was before the district court, to say the least, generates large doubts as to Kovacs” truthfulness at the initial hearing. Since those doubts are to be resolved against the petitioner, the denial must stand. See Tieri, supra.

We pause to note what we are not holding. Petitioner is not being denied naturalization for his sexual activities —but rather for his lack of candor under oath. This is not a case like Labady, supra, where the applicant testified truthfully about prior homosexual acts, yet still was granted naturalization because of the private character of his sexual life. Had Kovacs testified truthfully about his past, the petition might well have been granted.

Affirmed.

      . The affidavit and Medical Certificate were prepared in connection with deportation proceedings; these were discontinued when the Ninth Circuit held that the term “psychopathic personality” was void for vagueness as applied to homosexuality. Fleuti v. Rosenberg, 302 F.2d 652 (9th Cir. 1962), vacated and remanded on other grounds, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963).

      . 8 U.S.C. § 1427(e) provides that the petitioner’s conduct prior to the five year period may be considered in determining whether the petitioner has met his burden of establishing good moral character, Consequently, there can be no question of the propriety of questioning Kovaes about his past history, which included several public acts.

      . While the order appealed from must be affirmed, we do note with some sympathy ICovaes’ contentions that his record since the 1962 arrest is unblemished. The petition here was filed before the Labady decison, and Kovacs may well have felt that admitting his past would have proved disastrous to his cause. Although his actions here cannot be praised, if his apparently exemplary public behavior continues, a greater exhibition of candor at a later date might well lead to a different result in his efforts to become a citizen.


author: ELY, Circuit Judge: CHAMBERS, Circuit Judge

text:
    Hugh NAUGHTEN, Petitioner-Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent-Appellee.
    No. 71-3065.
    United States Court of Appeals, Ninth Circuit.
    May 24, 1972.
    As Amended on Denial of Rehearing Jan. 18, 1973.
    Dissenting Opinion Feb. 26, 1973.
    Certiorari Granted April 23, 1973.
    See 93 S.Ct. 1926.

      Ross R. Runkel (argued), Salem, Or., for petitioner-appellant.
    John W. Osburn, Sol. Gen. (argued), Jim G. Russell, Asst. Atty. Gen., Lee Johnson, Atty. Gen., Salem, Or., for respondent-appellee.
    Before JERTBERG, ELY, and HUFSTEDLER, Circuit Judges.
   ELY, Circuit Judge:

Naughten is an Oregon state prisoner, convicted of the offense of armed robbery. His direct appeal in the Oregon state courts was unsuccessful. State v. Naughten, 90 Adv.Or. 1811, 471 P.2d 830 (App. 1970). Eventually, Naughten filed a petition for habeas corpus in the court below, and he now appeals from the denial of that petition.

In the state court trial, the judge, over Naughten’s objection, instructed the jury as follows:

“Every witness is presumed to speak the truth. This presumption may be overcome by the manner in which the witness testifies, by the nature of his or her testimony, by evidence affecting his or her character, interest, or motives, by contradictory evidence, or by a presumption.”

Such an instruction has been almost universally condemned. See United States v. Birmingham, 447 F.2d 1313 (10th Cir. 1971); United States v. Stroble, 431 F. 2d 1273 (6th Cir. 1970); McMillen v. United States, 386 F.2d 29 (1st Cir. 1967), cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288; United States v. Dichiarinte, 385 F.2d 333 (7th Cir. 1967); United States v. Johnson, 371 F.2d 800 (3d Cir. 1967); United States v. Persico, 349 F.2d 6 (2d Cir. 1965). See also United States v. Safley, 408 F.2d 603 (4th Cir. 1969); Harrison v. United States, 387 F.2d 614 (5th Cir. 1968); Stone v. United States, 126 U.S.App.D.C. 369, 379 F.2d 146 (1967). In Stone v. United States, supra, Judge, now Chief Justice, Burger, wrote:

“[This instruction] has a tendency to impinge on the presumption of innocence. Lurking in such an instruction is the risk that the jury might conclude that they were required to accept the testimony of the prosecution’s witnesses at face value, particularly when it is not contradicted by other witnesses.”

379 F.2d at 147.

In the state court trial, Naughten did not testify, nor did he present any witnesses in his defense. Thus, the clear effect of the challenged instruction was to place the burden on Naughten to prove his innocence. This is so repugnant to the American concept that it is offensive to any fair notion of due process of law. See Bentley v. Crist, 469 F. 2d 854, 855 n. 2 (9th Cir. 1972).

The appellee contends that other of the court’s instructions offset the vice of the instruction that we have quoted. We do not agree, for there was no instruction so specifically directed to that under attack as can be said to have effected a cure.

The appelleee also contends that the instruction, even if fatally defective under the federal constitution, was, in the circumstances, harmless beyond all reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed. 2d 705 (1967). We reject this argument also. Once Naughten established the infringement of a constitutionally protected right, the burden shifted to the appellee to establish that the error was harmless under the Chapman standard. From our examination of the transcript of the trial proceedings, we conclude that the appellee could not, in this case, meet the burden. Cf. Anderson v. Nelson, 390 U.S. 523, 88 S.Ct. 1133, 20 L.Ed.2d 81 (1968).

Naughten is entitled to a new trial; therefore, upon remand, the District Court will hold the petition in abeyance for a reasonable period, not to exceed sixty days, so as to afford Oregon the opportunity to reprosecute Naughten should it choose to do so.

Reversed and remanded.

ORDER ON PETITION FOR REHEARING

The court amends its original opinion in the subject case as follows:

(1) The insertion of a footnote reference after the word “objection,” the last word of the first line of the second paragraph of the slip opinion of May 24, 1972.

(2) The addition of a footnote reading as follows: “The fact that Naughten made a timely objection to the instruction deserves emphasis. Absent such an objection, he would be in no position to challenge it. This is because, in the circumstances of a particular case and because of other contents of the instruction, an accused’s attorney might appropriately deem it strategically advantageous to the accused that the instruction be given.”

The court’s original opinion having been thus amended, the panel as originally constituted has voted to deny the petition for rehearing and to reject the suggestion for en banc rehearing.

The full court has been advised of the suggestion for en banc rehearing and has been advised of the foregoing amendments to the court’s original opinion.

A judge in active service having requested that a vote be taken on the appellee’s suggestion for en banc rehearing, such a vote has been taken. Fed.R.App.P. 35(b). Judges Chambers, Koelsch, Wright, Trask, Goodwin, and Wallace would have granted en banc rehearing, and Judge Chambers wishes it recorded that he presently intends to write and file, at a later date, a separate opinion explaining his views.

The other six judges in active service voted to reject the suggestion for en banc rehearing. The vote being equally divided, the suggestion for en banc rehearing is rejected.

CHAMBERS, Circuit Judge

(dissenting) :

Naughten was charged with robbing a Quickie Mart drive-in grocery store in Portland, Oregon, on August 17, 1968. The evidence at trial consisted of the testimony of James R. Livengood, the proprietor of the store, the testimony of Larree E. Weissenfluh, a friend of Livengood who was in the store with Liven-good, and the testimony of the officers who arrested Naughten and investigated the crime.

Livengood testified as follows:

The store closed at midnight. Around midnight on August 17, 1968, Liven-good was in the store preparing the till change for the next morning. Liven-good’s friend Weissenfluh was in the store partly because Livengood did not like to be in the store alone late at night. The store was well-lighted, even after closing, since several of the banks of lights were left lighted all night. There were large glass doors at the front of the store.

At approximately 12:10 a man entered the store, brandished a pistol and said, “This is a holdup.” The robber took three stacks of currency from the counter top where Livengood was working. There had been 21 $1. bills, 9 or 11 $5. bills, and 3 $10. bills. The robber told Livengood to open the safe. Livengood opened the safe, and the robber removed a small, brown paper grocery bag filled with quarters from the safe.

The bandit ordered Livengood and Weissenfluh to the rear of the store to a walk-in cooler. After they had been in the rear of the store a short time, Weissenfluh said, “He’s gone.” Liven-good went to the front of the store, but the robber was still there. The robber ordered Livengood to get back to the rear of the store and stay there or the robber would use the pistol. The robber put the pistol to Livengood’s head and directed him to the rear of the store, threatening to pistol-whip him if he did not obey.

After a moment, Weissenfluh said, “He's gone, I’m sure he’s gone this time.” Livengood went up front again, got his pistol from under the counter, and looked for the robber. The robber was gone. Livengood went out front and saw the robber in the parking lot of a tavern across the street for only a brief moment.

Livengood called the police and reported the robbery, then stayed on the telephone watching the parking lot across the street. He saw a car leave, then another that appeared to be driven by the robber. A police car pulled up at that moment and stopped the car pulling out of the parking lot. Livengood went over to the car and identified the driver as the robber. He was not wearing the overcoat he had worn in the store, and Livengood did not see the pistol.

Livengood described the robber’s pistol as being about six inches long, .22 calibre, and old and worn. Livengood said that the robber wore dark trousers, a light-colored shirt, and an overcoat. The robber was about two to three feet away from Livengood. The robber was in the store a total of fifteen minutes, and of that time Livengood observed him all but two or three minutes.

Livengood identified Naughten at trial as the robber. The prosecutor asked, “Is there any doubt in your mind?”

Livengood responded, “None whatsoever.”

On cross-examination, Livengood denied that he had viewed any lineups or any photospreads containing pictures of Naughten. Livengood denied talking about the case with anyone except for answering some questions for the deputy district attorney the day before the trial. Livengood admitted being with Weissenfluh the evening before his testimony, but denied discussing the case except to wonder how long it would last. Liven-good said that he had never before testified in a case.

Weissenfluh testified as follows:

He was a shipping clerk, not employed at the Quickie Mart. On the night of the robbery he had been visiting with Livengood at the store since about 10:00 p. m. They planned to have a few beers after closing. At about 12:10, Weissenfluh was standing in front of the glass doors when Livengood said, “Turn around.” When Weissenfluh turned, he saw a man with a gun who said, “Don’t move.” The robber picked up the money from the counter, put it in his coat pocket, then ordered Livengood to open the safe. The robber reached into the safe and removed something Weissenfluh could not identify.

The robber then marched Weissenfluh and Livengood to the cooler that covered the back wall. Weissenfluh thought he could see the store from the cooler and said, “He’s gone.” They both ran up front to get Livengood’s pistol. The robber was not gone. The robber marched them back to the cooler with pistol in Livengood’s neck. He threatened to pistol-whip Livengood.

■ Weissenfluh and Livengood waited until the robber left, then went up front. Livengood grabbed his gun from under the counter, Weissenfluh took it from him while Livengood got on the phone and called the police. Weissenfluh fired two shots at the fleeing robber. The robber went to a tavern parking lot across the street and Weissenfluh lost sight of him.

Weissenfluh saw one car leave the lot across the street, then the car apparently driven by the robber. Livengood described the car with the robber in it to the police over the telephone. Just as the robber’s car was emerging from the lot, two police cars arrived and arrested the three occupants. Weissenfluh identified the driver as the robber. Although Weissenfluh could only see the head of the driver of the car, he had no difficulty in identifying him. As Weissenfluh said, “When someone sticks a gun in my ribs, I don’t forget their face.”

Weissenfluh testified that the robber wore slacks, shirt and tweedy sport coat or car coat. He identified the pistol as a long-barreled .22 calibre. When the prosecutor asked Weissenfluh if the robber were in the court, Weissenfluh identified Naughten. .

“Q Is there any doubt in your mind?

“A No, there’s not, no doubt whatsoever.”

On cross-examination, some inconsistencies developed between Livengood’s testimony and Weissenfluh’s. Livengood had testified that he had seen Weissenfluh at the police station when he went to sign a complaint. Weissenfluh denied ever having been in the police station. Weissenfluh stated that he had spent the night before testifying in Liven-good’s hotel room. (Livengood had moved away from.Portland.) Livengood had testified that they had only played pool the evening before. Livengood testified that he wanted Weissenfluh in the store for protection late in the evening. Weissenfluh said he was only there because he and Livengood were going to have a few beers later in the evening.

In addition to Weissenfluh and Liven-good, two uniformed police officers and one detective testified. The officers testified that they had received a radio call to go to the Quickie Mart since there was a robbery in progress. They received a description of the car that Livengood thought he had seen the robber driving. As the officers arrived, they saw a car matching the description pull out of the tavern parking lot across the street. They pulled over the car and arrested all three occupants. One of the men identified Naughten, the driver, as the robber. Naughten was placed in the rear of one of the police cars. One of the officers saw Naughten attempting to conceal money in the crack of the seat of the police car. Naughten had his hands cuffed behind his back, and he was pulling the money from his right rear pants pocket and stuffing it into the crack. The officers seized the money and found 21 one dollar bills, eleven five dollar bills, and three ten dollar bills.

Naughten was not wearing a coat, and a search of him and the car he was driving revealed no pistol. However, in searching the parking lot, the officers did find a bag of quarters near the rear door of the tavern.

A detective on the case was not able to add much except to identify the clothes taken from Naughten the night of the robbery, and to testify that he had ordered the store dusted for fingerprints.

Naughten offered no witnesses in his own defense.

From the foregoing we see precious little discrepancies in the testimony— only the slight variances that tend to confirm veracity of two witnesses to the same event.

Obviously, under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), we can say beyond a reasonable doubt the alleged error was harmless.

In a case so harmful to delicate state-federal relations we ought to take the case en banc. Cf. Leiter Minerals v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267 (1957).

It is clear the federal courts now on direct appeal, where objection was made timely in lower courts, usually reverse on the instruction. But I am unconvinced that the point rises to constitutional dimensions. The inept instruction obviously comes from Mathes and Devitt, Federal Jury Practice and Instructions § 72.01 (1965), and we must assume it has been given thousands of times.

This sort of thing should be left to the states when it is a state case.

ALFRED T. GOODWIN, Circuit Judge, concurs in the foregoing expressed dissent.

      . The fact that Naughten made a timely objection to the instruction deserves emphasis. Absent such an objection, he would be in no position to challenge it. This is because, in the circumstances of a particular ease and because of other contents of the instruction, an accused’s attorney might appropriately deem it strategically advantageous to the accused that the instruction be given.

       Editor’s Note: The changes have been made in the original opinion.


author: McENTEE, Circuit Judge.

text:
    GENERAL MOTORS ACCEPTANCE CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-1128.
    United States Court of Appeals, First Circuit.
    Heard Feb. 6, 1973.
    Decided April 6, 1973.

      Edmond J. Dilworth, Jr., Detroit, Mich., with whom Ross L. Malone, Harry S. Benjamin, Jr., Eugene L. Hartwig, J. R. Wheatley, and Robert N. Price, Detroit, Mich., were on brief, for petitioner.
    Stanley J. Brown, Atty., Washington, D. C., with whom Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Abigail Cooley Baskir, Atty., Washington, D. C., were on brief, for respondent.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

In this proceeding General Motors Acceptance Corporation (GMAC or the company) seeks review of a Labor Board order holding that it violated § 8(a)(1) and (5) of the National Labor Relations Act. 29 U.S.C. § 158 (1970). Specifically, GMAC challenges Board findings that it coerced its employees in the exercise of their § 7 rights by suspending payment of merit increases and by soliciting signatures on letters repudiating the union; also that it violated § 8(a)(5) by failing to bargain in good faith. The Board cross-petitions for the enforcement of its order. For the reasons set forth below, we grant the petition for enforcement.

The salient background facts are as follows. In early 1968 GMAC, a wholly owned subsidiary of General Motors Corporation which was engaged in the financing of motor vehicles, had in effect a program of semiannual merit reviews covering the performance of its field representatives in its San Juan, Puerto Rico office. The representatives whose work was rated “fair” or higher were usually given salary increases as a result of this review. In September 1968, when the union first made its presence known, the company discontinued this policy and informed the field representatives that no further raises would be given until the status of the union was settled. On November 21, 1968, following a consent election, the union was certified as the bargaining agent for the representatives.

Negotiations between the union and GMAC began on December 12, 1968, and continued at a leisurely pace for the next seventeen months. Although the union was in part responsible for the slow-paced nature of the bargaining, the company’s selection of a team of negotiators based on the mainland and able to visit Puerto Rico only for very brief periods each month appears to have been a major source of delay. Also, throughout this period, while the company continued to conduct the semiannual employee evaluations and was forced by competitive conditions to pay higher salaries to newly hired employees, it persisted in withholding all merit increases. The upshot of this policy was that by December 1969 a number of experienced representatives were receiving salaries lower than those being paid to newly hired, inexperienced employees. As an outgrowth of this situation, the company began to receive a number of complaints about its freeze on merit increases. When the company insisted that its hands were tied until negotiations with the union were settled, employee dissatisfaction with the union soon became widespread.

In the meantime, negotiations continued to proceed at a sluggish pace. Following a single half day meeting in December 1969, the parties met for two half days in both March and April. On May 4, 1970, a company official sent a letter to all employees which purported to summarize the status of the negotiations. This letter read in part as follows:

“To summarize, I would say the present status of the negotiation is unclear. It does appear, however, that with the many items still remaining and judging from the pace of past bargaining and the results thereof, an early resolution is highly speculative.
“In conclusion, I would like to make one more point. I have been told that the Field Representatives feel that without the Union to protect them, they would be discharged from their employment. This is completely false. Our objective is to manage fairly and with justice to all employees.”

At the May 15 bargaining session the union abandoned all of its proposals and acceded to the company’s position on all issues except retroactivity. GMAC’s bargaining team then announced that they were returning to the mainland to study the union’s offer and to await union notification as to whether it found their retroactivity proposal satisfactory. Five days later, in spite of intense pressure from the employees to conclude the negotiations, the union informed the company that it was maintaining its position on this issue. The parties then agreed to meet again in Puerto Rico on June 10.

During the first week of June, at the direction of the GMAC bargaining team, company officials in San Juan solicited and obtained the signatures of six field representatives, all of whom had previously expressed dissatisfaction with the union, on letters prepared by the company which stated that they, “voluntarily disavow [ed]” the union as their collective bargaining agent. At the June 10 meeting the company, relying on these letters and the numerous oral expressions of employee discontent it had received, withdrew recognition from the union expressing doubt as to its majority status. Thereupon the union filed the instant unfair labor practice charges. In October 1970, the company granted substantial non-retroactive merit increases to all of the field representatives which it conceded were “catch-up” raises for those which had been withheld for the previous two years.

Based on this background a majority of the Board concluded that by “denying merit increases to its employees after awarding them satisfactory work performance ratings, implying that [they] should abandon the Union to obtain withheld merit increases, assisting its employees in the preparation of necessary papers for disaffiliation from the Union, delaying bargaining, and breaking off negotiations,” GMAC had, in effect, engaged in a systematic campaign designed to undermine employee support for the union. The company raises objections to each of these unfair labor practice findings.

Turning first to the pivotal issue of the suspension of merit increases, the company contends initially that the Board was barred by § 10(b) of the Act, 29 U.S.C. § 160(b) (1970), from finding this conduct unlawful because the original decision to stop paying these raises was made more than six months before the complaint in this action was filed. The Board’s rejoinder, which we find persuasive, is that its finding on this charge is based not upon GMAC’s initial decision to take this action but rather upon a number of acts committed within the limitations period which, when viewed in the aggregate, indicate that GMAC was attempting to discredit the union by shifting full responsibility to it for the employees’ loss of the merit increases. For example, in May 1970 the company conducted a merit evaluation and informed individual employees how their work had been rated. When a number of representatives complained about not receiving increases following this evaluation, the company was quick to point out that no raises could be had until the negotiations were settled. The company’s letter of May 4 to all of the employees served only to exacerbate the situation. By characterizing the present status of the negotiations as “unclear” and the chances of an early settlement as “highly speculative,” the company further fanned the embers of employee discontent. The solicitation of the letters repudiating the union was the final step in this campaign. Given these events, all of which occurred within the limitations period and which, when considered in concert, are sufficient to make out the alleged violation, it is clear that this charge was not time barred.

GMAC’s second line of defense, namely that it was required to suspend merit increases throughout the period of the negotiations under the mandate of NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962), is also without merit. In Katz the Supreme Court drew a distinction between merit increases which “were in line with the company’s long-standing practice of granting quarterly or semiannual merit reviews — in effect, were a mere continuation of the status quo” and those which were not. Id. at 746, 82 S.Ct. at 1113. Finding that the raises in question were of the latter variety, the Court held that Katz had violated § 8(a)(5) and (1) by unilaterally granting such increases while bargaining over similar raises with the union. In the instant case, however, the Board found that GMAC’s merit increase program fell within the former category. While recognizing that the company retained some discretion over whether increases would be granted to individual employees, depending upon the outcome of each individual’s merit review, the Board also found that the merit increase policy, when taken as a whole, was “an existing form of compensation, and a term and condition of employment regularly expected by the employees.” Evidence in the record lends substantial support to this conclusion. Given this finding, GMAC could have continued this program throughout the bargaining period without violating the Act providing it was willing to confer with the union if these raises were questioned. See, e. g., H. E. Fletcher Co., 131 N.L.R.B. 474 (1961), enforcement denied on other grounds, 298 F.2d 594 (1st Cir. 1962); Southshore Packing Corp., 73 N.L.R.B. 1116 (1947). Apart from this, however, if GMAC’s suspension represented merely a good faith attempt on its part to comply with its understanding of the rule in Katz, we would be reluctant to find a violation of the Act based upon such conduct. See J. J. Newberry Co. v. NLRB, 442 F.2d 897, 900 (2d Cir. 1971); NLRB v. Dorn’s Transportation Co., 405 F.2d 706 (2d Cir. 1969). The instant record, however, provides little support for GMAC’s claim that its motive for withholding these raises was innocent. The timing of the suspension, the company’s consistent effort to shift blame to the union for the freeze, and the evidence of additional coercive conduct in the record all support the trial examiner’s conclusion that GMAC “withheld the salary increases which the employees otherwise would have received, in reprisal for the unionization of this single branch of [its] world-wide nonunion operation and for the purpose of eliminating the Union.”

In light of the preceding discussion, GMAC’s argument that its solicitation of the letters repudiating the union was not violative of the Act merits little comment. Aside from the fact that such “shepherding” of employees in the preparation of repudiation letters, where it rises above the level of the purely ministerial, has in itself been held to be unlawful, Cumberland Shoe Co., 160 N.L.R.B. 1256 (1966); Southwestern of Dallas Optical Co., 153 N.L.R.B. 33 (1965), this conduct, when considered in the context of the unlawfully withheld merit increases, appears clearly to have been just one further step in the company’s assault on the union’s majority. As such, its coercive impact upon the employees’ organizational rights cannot be disputed.

In evaluating the Board’s bad faith bargaining finding, in light of the entire history of the negotiations, NLRB v. Reed & Prince Manufacturing Co., 205 F.2d 131, 139 (1st Cir.), cert. denied, 346 U.S. 887, 74 S.Ct. 139, 98 L.Ed. 391 (1953), we feel that the following facts are particularly pertinent. From the beginning of the negotiations until May 22, 1969, the parties met approximately twenty times and considered, among other things, the union’s proposed contract and the company’s counter-offer. In December 1970, following a seven month bargaining hiatus attributable in large part to the unavailability of the company’s bargaining team, the parties met again in Puerto Rico. When the union’s spokesman was unable to attend the first session, however, the company team chose to depart following a single half day meeting, informing the union that if it wished to meet again it should come to the mainland. When the union requested further bargaining on January 8, 1970, the company responded that it ■ was willing to continue negotiating in New York. This response led the union to file unfair labor practice charges against GMAC, but these charges were subsequently withdrawn. Before the company became aware of this withdrawal, however, it responded to the union’s March 9 bargaining request as follows:

“In reply to your telegram of March 9, 1970 please advise us if you are willing to withdraw at the soonest time possible your unfair labor practice charge pending before the Puerto Rico office of the National Labor Relations Board. . . . We believe that it does not conform to the realities of the circumstances to suggest negotiations while the charge is pending resolution. . . . ”

Thereafter the parties met in March, April, and May. During these sessions, although the union continually requested longer and more frequent bargaining meetings, the company refused to meet more often than two or three times per month and never for any longer than four or five hours a day. By the final meeting in May the union had accepted the company’s proposals on all issues except retroactivity and on this question the parties were not far apart. At the next session held on June 10, possibly because an agreement seemed imminent, the company, asserting doubt as to the union’s majority status, withdrew recognition from the union and refused to bargain with it further.

On this background the Board found that by scheduling so few bargaining meetings with the union, by insisting for a time that the union come to New York for negotiations, and by conditioning further meetings on the union’s withdrawal of a pending unfair labor practice charge, GMAC had not lived up to its statutory duty to bargain in good faith. We conclude that this finding was wholly appropriate. When considered in light of the suspended merit increases, the company’s use of these pretexts to further delay negotiations appears to have been an integral part of its campaign to undermine the union. Under these circumstances the inference that GMAC had not entered negotiations with an open mind and a sincere desire to reach an agreement was clearly warranted.

Finally, given our conclusion that the Board’s unfair labor practice findings are amply supported by the record, GMAC may not rely on any alleged “good faith doubt” as to the union’s majority status as a defense in this action since any loss in the union’s majority support was directly attributable to its own unlawful conduct. See Franks Bros. Co. v. NLRB, 321 U.S. 702, 704-705, 64 S.Ct. 817, 88 L.Ed. 1020 (1944).

The petition to review is denied and the Board’s order may be enforced.

      . The Board’s decision and order are reported at 196 N.L.R.B. No. 13 (1972).

      . Congreso de Uniones Industriales de Puerto Rico.

      . A field representative’s primary duties include adjusting past due retail accounts and making wholesale collateral audits within an assigned territory.

      . For example, on February 27, 1970, five representatives met with company officials and, after expressing dissatisfaction with their current salary levels and also with the prolonged nature of the negotiations, asked what steps they might take to rid themselves of the union. Branch manager Marr replied “that they could get out of the union the same way they got in.” Similarly, in May 1970 when employee Cintron complained to Assistant Branch Manager Requena about his financial situation and the fact that new employees were earning more than he was, he was told “[t]hat due to the increase in the cost of living these people started with a higher salary but because of the problem between the company and the union . . . [you] did not get a raise.”

      . The parties’ course of conduct during the negotiations will be considered in detail, infra, in conjunction with the § 8(a)(5) charge.

      . Section 10(b) provides in part: “That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board. . . . ” As noted above, the company stopped paying merit increases in September 1968 and the complaint was filed on June 10, 1970. Thus, any conduct which took place before December 10, 1969, falls outside the limitations period.

      . This conclusion of course distinguishes the instant case from those relied on by the company, like Bonwit Teller, 96 N.L.R.B. 608 (1951), enforcement denied on other grounds, 197 F.2d 640 (2d Cir. 1952), cert. denied, 345 U.S. 905, 73 S.Ct. 644, 97 L.Ed. 1342 (1953) where the employer committed no unlawful conduct during the limitations period, and from our recent decision in NLRB v. Field & Sons, 462 F.2d 748 (1st Cir. 1972).
      Furthermore, in light of this conclusion, it was permissible for the Board to consider evidence about events which occurred more than six months before the instant complaint was filed. While such events standing alone will not support an unfair labor practice finding, the Board may look to them “to shed light on the true character of matters occurring within the limitations period.” Local Lodge No. 1424, IAM, AFL-CIO v. NLRB, 362 U.S. 411, 416, 80 S.Ct. 822, 826, 4 L.Ed.2d 832 (1960).

      . The company’s long established policy of making these increases, the testimony of a number of field representatives that they had come to expect these raises, the large number of complaints the company received when these increases were not paid, and the company’s payment of “catch-up” increases following the withdrawal of recognition all support the Board’s finding. Further, we note that throughout the bargaining period the company never justified the wage freeze to the employees on the ground that it had the discretion to withhold these increases; it chose rather to use the negotiations with the union as its explanation for this policy..


text:
    In re PUERTO RICO NEWSPAPER GUILD LOCAL 225, affiliated with the Newspaper Guild, AFL-CIO, CLC, a/k/a Union de Periodistas Artes Graficas y Ramas Anexas, and the Newspaper Guild, AFL-CIO, CLC, Respondents-Appellants.
    No. 72-1177.
    United States Court of Appeals, First Circuit.
    Heard Feb. 9, 1973.
    Decided April 18, 1973.
    Francisco Aponte Perez, Santuree, P. R., with whom George L. Weasler, Santurce, P. R., was on brief, for appellants.
    Marvin Roth, Supervisory Attorney, Washington, D. C., with whom Peter GNash, Gen. Counsel, Julius G. Serot, Sp. Counsel to the Gen. Counsel, and Edward A. Klein, Atty., Washington, D. C., were on brief, for appellee.

      Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

This is an appeal from a criminal contempt judgment entered against the appellants, Puerto Rico Newspaper Guild Local 225, (the Local) and the Newspaper Guild, AFL-CIO, CLC (the International) for violating a temporary restraining order issued by the district court pursuant to § 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j) (the Act). The primary question before us is whether the court, having denied appellants’ request for a jury trial, committed reversible error in sentencing them to pay aggregated fines in excess of $500. We conclude that, under the circumstances of this case, the court did not err in imposing a sentence of this magnitude, and since we find no merit in the other contentions raised by appellants, affirm the judgments below.

The contempt order grew out of a strike by the members of Local 225 against El Mundo, Inc. (the Company). On March 16, 1972, the Regional Director of the National Labor Relations Board, acting pursuant to § 10(j) of the Act, petitioned the district court for a temporary restraining order preventing the appellants from engaging in mass picketing and other threats and acts of violence against persons attempting to enter or leave the premises of the Company. Finding reasonable cause to believe that unfair labor practices were being committed by the appellants, the court granted the Board’s request for a temporary restraining order, and on April 6 superseded this order with a temporary injunction. In the meantime, the Board had initiated the present contempt proceeding against the appellants for their violation of the original restraining order. In response to the Board’s motion, the unions filed an answer which in substance denied the allegations of the petition and raised various affirmative contentions, including a demand for a jury trial. The court subsequently denied this demand, but stated that any possible fine against the appellants would not exceed $500 for each individual act of contempt of which they were convicted. The court also refused to disqualify itself from hearing the contempt proceeding merely because it had issued the original restraining order, and similarly denied appellants’ motion to exclude the Board’s attorneys as co-counsel in the prosecution of the case. Following a three day hearing, the court found both unions guilty of multiple instances of contempt, and imposed varying fines of not more than $500 on each individual count. The total amount of the fines were $9,050 and $5,650 against the Local and the International respectively.

Appellants’ argument that the court was precluded from imposing a fine of over $500 in the absence of a jury trial or a waiver thereof is dependent on both parts of a two-pronged analysis. First, appellants rely on Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) and Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968) to establish the proposition that when a fine exceeding $500 is imposed for contempt of court, the offense must be considered a “serious” one triable by jury as a matter of constitutional right. Secondly, appellants argue, citing United States v. Seale, 461 F.2d 345 (7th Cir. 1972) and In re Dellinger, 461 F.2d 389 (7th Cir. 1972), that this supposed limitation on a trial court’s power to impose contempt sentences in the absence of a jury trial may not be avoided by an aggregation of penalties, notwithstanding that the fine on each individual contempt count is less than $500. The issues thus presented, while not entirely novel to the federal courts, see United States v. R. L. Polk and Co., 438 F.2d 377 (6th Cir. 1971), are questions of first impression in this circuit.

We may start from the common ground that there is a constitutional right to a jury trial in cases of serious criminal contempts, Bloom v. Illinois, supra, and that the seriousness of the offense is to be determined by reference to the penalty imposed. Id. 391 U.S. at 211, 88 S.Ct. 1477; see Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966). Our problem in the present case, however, is that in defining the penalties which make a particular offense a serious one, the Supreme Court has addressed itself directly only to sentences of imprisonment, and not to the imposition of fines. See Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Bloom v. Illinois, supra; Duncan v. Louisiana, supra; Cheff v. Schnackenberg, supra. Appellants point to the Court’s reliance in Duncan on the “objective criteria” set forth in 18 U.S.C. § 1 for a definition of serious and petty offenses. Since that section defines a petty offense as “[a]ny misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both,” appellants contend that they were entitled to a jury trial under a logically necessary extension of Duncan and Bloom. Their position in this regard is not without authoritative and well-reasoned support. See United States v. R. L. Polk and Co., supra. The Polk case, however, involved a fine of $35,000 imposed on a corporation for a single instance of contemptuous conduct, and is therefore clearly distinguishable from the aggregated penalty situation now before us. Since we believe that appellants’ reliance on Seale and Dellinger in support of their second proposition is misplaced, we prefer not to consider the merits of the Polk holding in the present context.

In Seale, the defendant was sentenced to consecutive terms of three months imprisonment for each of sixteen acts of misbehavior committed during the course of a criminal trial. These sentences were imposed summarily by the trial court after a mistrial had been declared as to Seale and his case severed from that of his codefendants. The Court of Appeals reversed Seale’s contempt conviction, holding that, where a trial judge postpones the exercise of his summary contempt power to the conclusion of court proceedings, the sentences imposed must be cumulated for purposes of determining the defendant’s right to a jury trial. In his persuasive opinion for the court, Judge Cummings emphasized the possible abuses to which the contempt power might be subjected, the difficulty of reviewing the trial court’s determination that the defendant’s contemptuous acts had indeed constituted discrete incidents, and the availability of the less potentially prejudicial alternative of an instantaneous, rather than a. postponed, exercise of the contempt power. The court, however, expressly refrained from passing on the question of whether the aggregation rule would apply in the case of an indirect contempt for violation of a court injunction, noting that in such instances the contempt power “is not necessarily susceptible to the same abuses and amenable to the same, less potentially prejudicial, immediate action alternative” which had led to the rule’s adoption. 461 F.2d at 356 n. 18. In answering the question thus left open by the court in Se ale, we note that in that case, the trial judge had been subjected to personal insults and villification of a kind highly likely to strike “at the most vulnerable and human qualities of a judge’s temperament.” Bloom v. Illinois, supra, 391 U.S. at 202, 88 S.Ct. at 1482. The appellate court’s consequent concern that a unitary course of contemptuous conduct might be “spread out” in order to punish a serious offense summarily may be best understood in light of these circumstances. The possibility of such abuse, however, is greatly reduced where, as here, the contumacious behavior involved is the violation of a court injunction rather than a direct contempt. Such conduct, while in disobedience of the court’s authority, does not involve the kind of affront to a trial judge likely to cause an identification of “offense to self with obstruction to law.” Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954). Thus, since there is no particular need to be wary of the trial court’s detachment and judicial objectivity in the type of case before us, we think that appellate review of the original discreteness determination will adequately protect the rights of defendants not to receive “serious” sentences for criminal contempts without the benefit of a jury trial.

There is also significance in the fact that the immediate action alternative in indirect contempt situations is neither convenient nor generally desirable. Although the Board could move the restraining court for a contempt citation immediately after the first violation, the procedure is far more cumbersome, ponderous, and costly than summary judicial sanction in the midst of a trial. In addition, were we to impose a general aggregation rule, we would encourage the mechanical application of the bludgeon when patience, mediation, negotiation, or even stern warning is the more appropriate response.

Moreover, there is nothing novel in distinguishing direct from indirect criminal contempts for purposes of defining the procedural safeguards necessary to protect the rights of defendants. Rule 42(b) of the Federal Rules of Criminal Procedure, for example, disqualifies a judge from presiding over a contempt hearing where “the contempt charged involves disrespect to or criticism of [that] judge,” but disobedience of a court order has been held not to fall within this category. See Nilva v. United States, 352 U.S. 385, 395-396, 77 S.Ct. 431, 1 L.Ed.2d 415 (1957). Similarly, while due process requires that a judge who has been “reviled” by a defendant not sit at the alleged contemnor’s trial, not every challenge to the court’s authority will result in such a disqualification. Mayberry v. Pennsylvania, 400 U.S. 455, 465-466, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971). In our view, these decisions buttress our conclusion that the Seale aggregation rule need not, absent exceptional circumstances, be extended to cases of indirect criminal contempts. Accordingly, the judgment below is affirmed.

Affirmed.

      . In most situations, the seriousness of an offense will be determined by looking to the maximum penalty authorized by statute for its commission. Baldwin v. New York, 399 U.S. 66, 72-74, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Duncan v. Louisiana, 391 U.S. 145, 159, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Since Congress has left the penalty for criminal contempts within the discretion of the district court, however, the sentence actually imposed is the most relevant factor in such cases. Frank v. United States, 395 U.S. 147, 148-149, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969).

      . In the present case, appellants do not challenge the district court’s determination that the Local and International committed 21 and 13 separate acts of contempt respectively, a finding which, in any event, is amply supported by the record. Our holding in this regard is in no way inconsistent with our recent decision in Baker v. Eisenstadt, 456 F.2d 382 (1st Cir.), cert. denied, 409 U.S. 846, 93 S.Ct. 110, 34 L.Ed.2d 87 (1972). The issue in that case was whether multiple contempt sentences could properly be imposed for an illegitimate refusal to testify where (1) the recalcitrant witness had given notice at the outset of his “testimony” that he would refuse to answer all questions relating to a particular subject and (2) an answer to any of the questions propounded might have been construed as a waiver of a claimed fifth amendment privilege. Our holding in Baloer that, under these circumstances, each individual refusal to answer could not be treated as a separate contempt is clearly not determinative of the discreetness issue where multiple violations of a court injunction have taken place.

      . On this basis, we dispose of appellants’ contention that the court erred in not disqualifying itself from hearing the contempt proceeding because it had issued the original restraining order.

      . Finally, we find no merit in appellants’ contention that the district court erred in designating attorneys of the National Labor Relations Board to prosecute the criminal contempt proceedings. See, e. g., United States v. Lederer, 140 F.2d 136, 138 (7th Cir.), cert. denied, 322 U.S. 734, 64 S.Ct. 1047, 88 L.Ed. 1568 (1944); cf. Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 269-270, 60 S.Ct. 561, 84 L.Ed. 738 (1940); Schauffler v. United Ass’n of Journeymen, 148 F.Supp. 704, 706 (E.D.Pa.1956), aff’d, 246 F.2d 867 (3d Cir. 1957).