text:
    UNITED STATES of America, Plaintiff-Appellee, v. David Eugene DUNCAN, Defendant-Appellant.
    No. 73-1855.
    United States Court of Appeals, Tenth Circuit.
    Oct. 3, 1974.
    Charles A. Beck, Denver, Colo., for defendant-appellant.
    James L. Treece, U. S. Atty., and John W. Madden III, Asst. U. S. Atty., for plaintiff-appellee.
    Before SETH, and HOLLOWAY, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, United States Senior District Judge, Eastern District of Michigan, sitting by designation.

   PER CURIAM.

Defendant David Eugene Duncan appeals his conviction after a trial by jury of contempt of court. The prosecution was initiated May 4, 1973 by an indictment which charged, in three counts, that Duncan had willfully disobeyed an injunction entered November 19, 1971 by the District Court for the District of Colorado in an action brought against him by the Securities and Exchange Commission, and that he was thus subject to punishment for contempt of court as provided in 18 U.S.C. § 401. Specifically, the indictment alleged that between January 1, 1972 and February 18, 1972, in violation of the injunction, he used the mails and the means of communication in interstate commerce to offer to sell and/or to sell unregistered securities to three named individuals.

The defendant contends the action should have been brought under 18 U.S.C. § 402 and, therefore, should have been dismissed under the one year statute of limitations applicable to that section. Section 402, however, is plainly inapplicable to the facts before us, it providing in part:

This section shall not be construed to relate to contempts * * * committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States, but the same, and all other eases of contempt not specifically embraced in this section may be punished in conformity to the prevailing usages at law.

Clearly, the injunction obtained by the Securities and Exchange Commission was entered in an action brought “on behalf of” the United States, and the action thus was not cognizable under § 402. Frank v. United States, 395 U.S. 147, 149 n. 1, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969).

The trial court refused to admit a document offered by defendant which allegedly contained exculpatory material. The defendant urges that because its author was unavailable and had no motive for fabrication, the document should have been admitted despite its hearsay nature. The record reveals that it was excluded, however, not because it was hearsay, but because it could not be authenticated, the defendant’s witness being unable to identify the handwriting as that of its purported author. We find no error in the exclusion of this document.

Finally, the defendant argues that the evidence was insufficient to support the Verdict. To the contrary, our examination of the record reveals ample evidence to sustain the conviction.

The judgment is affirmed.

      . 18 U.S.C. § 401 provides in pertinent, part:
      A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—
      * * * :Ü
      Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

      . 18 U.S.C. § 402 provides in part:
      Any person * * * willfully disobeying any lawful writ, process, order, rule, decree or command of any district court of the United States * * * by doing any act or thing therein, or thereby forbidden, if the act or thing so done be of such character as to constitute also a criminal offense under any statute of the United States * * * shall be prosecuted for such contempt as provided in section 3691 of this title [granting right to trial by jury] and shall be punished by fine or imprisonment, or both.

      . 18 U.S.C. § 3285; see United States v. Goldman, 277 U.S. 229, 48 S.Ct. 486, 72 L.Ed. 862 (1928).


source: Caselaw Access Project

author: ENGEL, Circuit Judge.

license: Public Domain

text:
    David H. FRANK, Plaintiff, Manuel G. Herrera II, Third Party Plaintiff-Appellee, v. L. J. W. VORIS, Individually and d/b/a The Wheel Bar, Third Party Defendant-Appellant.
    No. 74-1221.
    United States Court of Appeals, Sixth Circuit.
    Argued June 20, 1974.
    Decided Oct. 8, 1974.
    David M. Tyler, Sommers, Schwartz, Silver, Schwartz, Tyler & Gordon, Detroit, Mich., for appellant.
    Edmund M. Brady, Jr., Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C., Detroit, Mich., for appellee.
    Before CELEBREZZE, LIVELY and ENGEL, Circuit Judges.
   ENGEL, Circuit Judge.

The sole question before us in this diversity case is whether Michigan law permits an intoxicated driver, sued for damages resulting from his drunk driving, to seek contribution toward payment of the claim from the tavern which he claims illegally sold liquor to him. In a carefully considered opinion, reported at 365 F.Supp. 744, District Judge Cornelia G. Kennedy held that such an action was maintainable, relying on the decision of the Michigan Supreme Court in Moyses v. Spartan Asphalt Paving Co., 383 Mich. 314, 174 N.W.2d 797 (1970). Accordingly, Judge Kennedy denied a motion by the tavern to dismiss the driver’s third-party complaint seeking contribution. We granted leave to appeal under 28 U.S.C. § 1292(b).

We affirm for the reasons set forth in Judge Kennedy’s opinion and find it unnecessary, therefore, to repeat the substance of Judge Kennedy’s interpretation of Moyses which is in our view accurate. We confine ourselves instead to the claim of appellant that we should ignore Moyses as dicta and be bound instead by the Michigan Court of Appeals’ decision in Virgilio v. Hartfield, 4 Mich.App. 582, 145 N.W.2d 367 (1966).

In Virgilio v. Hartfield, supra, two bar owners, who allegedly served intoxicants to an automobile driver while he was intoxicated, were sued under Michigan’s Dram Shop Act for damages arising from the death of a passenger when the car was involved in a collision. The bar owners, in turn, filed a third-party complaint against the drunk automobile driver whom they were charged with serving, seeking contribution. Holding that the driver and the bar owners were not joint tortfeasors, the Michigan Court of Appeals ruled that the bar owners had no right of contribution from the intoxicated driver.

Appellant urges that the holding of Virgilio should be applicable to the facts here. The. Michigan Supreme Court, however, in Moyses v. Spartan Asphalt Paving Co., supra, declared that Michigan will no longer limit contribution to those who traditionally have been deemed joint tortfeasors within the historical definition of that term. Moyses therefore broadened Michigan’s right of contribution by overruling “what is left of Michigan’s common law bar of contribution between or among ‘wrongdoers’, wilful or intentional wrongdoers excepted. Such overrulement will leave the issue of contribution to equitable principles as known hitherto and now in matters of express or implied contract.” Moyses, supra, 174 N.W.2d at 806.

Appellants urge, however, that the foregoing ruling in Moyses was but dicta and was not essential to the issues litigated in that case. It is true that the immediate effect of the court’s decision in Moyses was to uphold the discretion of the trial court in refusing to implead third parties for the purpose of contribution, a strategy which the court had found would unduly delay the trial of the principal case. The Supreme Court, however, found it necessary in connection with the denial of impleader to make clear to the disappointed litigant that his right of contribution was not lost altogether:

“We have said that Spartan was not possessed of a right, under section 2925 [Mich. C.L.S., 1961, 600, 2925] and Rule 204 [Michigan General Court Rules], to implead the additionally proposed third-party defendants. By no means, however, does that conclusion (and the denial below of its present motion) eliminate Spartan’s inchoate right, if any, to contribution or indemnity from the Michelin Corporation or the French corporation, or both.”

Moyses, supra, at 800.

Thus the “inchoate right” specifically held to survive was a right to contribution limited neither by the Michigan statute, M.C.L.A. § 600.2925; M.S.A. § 27A.2925, nor by pre-existing definitions of joint tortfeasors. We do not need to decide whether the Supreme Court of Michigan could have reached the same result without going further to overrule the common law bar of contribution among wrongdoers; it is enough that that court clearly did not believe it could without doing violence to its notions of justice. The extensive recapitulation in Moyses is not a chance or offhand expression of the court, but is rather the clear and unequivocal conclusion of the highest tribunal in the state. We are convinced we should abide by it. See Sherby v. Weather Brothers Transfer Company, 421 F.2d 1243, 1244 (4th Cir. 1970); Priest v. American Smelting and Refining Co., 409 F.2d 1229, 1232 Footnote 6 (9th Cir. 1969); Home Royalty Association v. Stone, 199 F.2d 650, 654 (10th Cir. 1952); and 1A Moore, Federal Practice, § 0.307 [2] at pages 3312-13.

Affirmed.

      . Plaintiff Frank’s lawsuit against the intoxicated driver, Herrera, has already been adjudicated and a judgment on a jury verdict has been entered against Herrera in favor of the plaintiff.

      . M.C.L.A. § 436.22; M.S.A. § 18.993

      . Michigan’s Dram Shop Act was amended in 1972 by the addition, inter alia, of the following sentence:
      “No action against a retailer or wholesaler or anyone covered by this act or his surety, shall be commenced unless the minor ■ or the alleged intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement.”
      Thus, the factual situation in Virgilio may not arise again because in future lawsuits against a tavern under Michigan’s Dram Shop Act the alleged intoxicated person will be a named defendant.

      . Justice Black, in Moyses, 174 N.W.2d, at 803, stated the definition to be that:
      “. . . . where two (or more) persons owe to another the same duty and by their common neglect of that duty such other is injured, the two (or more) have committed a joint tort and therefore are joint tortfeasors."

      See also the extensive treatment of the subject by Justice Charles L. Devin, when lie was a judge of the Michigan Court of Appeals, in Duncan v. Beres, 15 Mich.App. 318, 166 N.W.2d 678. While the idea lias not commended itself to Michigan courts, because of the statutory nature of the bar’s liability, an interesting argument can at least be made that the concept of a joint tort first established in Merriweather v. Nixan (1799) 8 TR 186 (101 Eng.Rep. 1337) is present where the bar owner and patron act intentionally and in concept participate in the sale of the intoxicant, each owing to the injured party a duty not to cause him injury through the single unlawful act.


author: PER CURIAM:

text:
    UNITED STATES of America v. Maria Gilma Gauira DIAZ, Appellant, a/k/a Maria Christina Marti Chaves, and Bernardo Giraldo Zuluaga.
    No. 74-1330.
    United States Court of Appeals, Third Circuit.
    Submitted under Third Circuit Rule 12(6) Aug. 22, 1974.
    Decided Sept. 16, 1974.
    Nicholas Trott Long, Philadelphia, Pa., for appellant.
    Robert E. J. Curran, U.S. Atty., Walter S. Batty, Jr., Carmen C. Nasuti, Asst. U.S. Attys., Philadelphia, Pa., for appellee.
    Before VAN DUSEN, WEIS and GARTH, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

Appellant challenges the March 11, 1974, judgment and commitment for possession with intent to distribute and unlawful importation of cocaine in violation of 21 U.S.C. ■§§ 841, 952, and 955, contending that, at the time she was subjected to a border strip search, the customs authorities had insufficient suspicion to justify said search, so that the search was unreasonable and in violation of her rights guaranteed under the Fourteenth Amendment to the United States Constitution. In United States v. Beck, 483 F.2d 203, 207 (3d Cir. 1973), Judge Rosenn explained the “special, pragmatic standards for judging the legality of stops and searches in or around border areas or international port facilities,” as follows:

“Instead of the usual requirement of probable cause to believe that an individual possesses contraband or that he has committed a crime demanded by the Fourth Amendment, a customs officer need only have a reasonable suspicion of illegal activity. [Citing cases.] ‘A customs officer has the unique power to stop a person at an international entry point to conduct a “border search” without having a search warrant and even having probable cause to believe the person has committed a crime.’ [Citing case.] Recognition of this diminished constitutional standard is reflected in 19 U. S.C. § 482, specifically authorizing customs officers to stop and search vehicles or persons in or on which they suspect there is merchandise illegally brought into the United States. It does not, of course, exempt border searches from the constitutional test of reasonableness.”

Based on the facts found in the district court opinion of March 11, 1974, and considering the totality of the circumstances in the record, a “real suspicion” justifying a strip search was present in this case. See United States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir. 1970), where the court said:

“ ‘Real suspicion’ justifying the initiation of a strip search is subjective suspicion supported by objective, ar-ticulable facts that would reasonably lead an experienced, prudent customs official to suspect that a particular person seeking to cross our border is concealing something on his body for the purpose of transporting it into the United States contrary to law.
“The objective, articulable facts must bear some reasonable relationship to suspicion that something is concealed on the body of the person to be searched; otherwise, the scope of the search is not related to the justification for its initiation, as it must be to meet the reasonableness standard of the Fourth Amendment.”

See also United States v. Glaziou, 402 F.2d 8, 12 (2d Cir. 1968), cert. denied, 393 U.S. 1121, 89 S.Ct. 999, 22 L.Ed.2d 126 (1968).

The March 11, 1974, judgment and commitment will be affirmed.

      . The objective facts on which the customs officials formed their real suspicion of smuggling were accurately summarized in the appellee’s brief, pp. 9-10, as follows:
      “1. The unusualness of a Latin American deboarding into the United States from an Air Jamaica flight;
      “2. the strange disappearance of another Latin who had entered in tire same fashion a short time earlier;
      “3. the circuitous route of travel to reach the ultimate destination of New York for the purpose of simply visiting friends;
      “4. the two one-way tickets in Zuluaga’s coat pocket that were purchased in numerical sequence with the identical circuitous route;
      “5. The denials by both Zuluaga and Diaz that they were traveling together;
      “6. the large amounts of cash on each but the absence of a wallet or other form of identification other than their passports ;
      “7. the nervousness of Defendant’s companion when questioned by the Customs Officials;
      “8. the knowledge of the Customs Agents of the modus operandi of a man and woman smuggling team and how the actions of Zuluaga and Diaz fit this profile ;
      “9. the fact that Zuluaga was one of the first passengers to deboard and Diaz was one of the last despite all indications that they were traveling together;
      “10. the small amount of luggage (one carry-on suitcase) that each had, the absence of warm clothing and the absence of trinkets for friends they allegedly were about to visit in New York;
      “11. the Defendant’s appearance of attempting to conceal her upper chest by leaning over the Immigration counter, crossing her arms in front of her chest and grabbing both sides of her coat and pulling them together ; and
      “12. the fact that Defendant’s upper chest appeared overly large or bulky for a woman of her size and shape.”


author: BARNES, Senior Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Jerry SEIDMAN, Appellant.
    No. 74-1975.
    United States Court of Appeals, Ninth Circuit.
    Sept. 18, 1974.
    Benjamin Lazarow (argued), Tucson, Ariz., for appellant.
    Christopher L. Pickrell, Asst. U. S. Atty., (argued), Tucson, Ariz., for ap-pellee.
   OPINION

Before BARNES and CARTER, Circuit Judges, and LINDBERG, District Judge.

BARNES, Senior Circuit Judge:

Defendant, with, a female passenger, arrived at the Lukeville, Arizona point of entry from Mexico on October 22, 1973, driving a Dodge pickup camper pulling a house trailer. A border inspector detected the faint odor of marijuana at the rear of the house trailer. The trailer was searched and 524 pounds of marijuana was found in a compartment of the trailer behind shelves and between a masonite board and the trailer shell. There was no other access to the compartment. The marijuana was green and moist.

Appellant was convicted on two counts (possession of marijuana with intent to sell, and importation thereof), and sentenced to concurrent similar sentences.

On appeal, appellant urges three errors :

First, the refusal of the trial judge to strike the entire jury panel of veniremen ;

Second, in refusing to admit a newspaper ad in evidence;

Third, insufficiency of the evidence.

We find no merit in any error urged. (1) The motion to strike the jury panel was based on overheard conversations outside the courtroom between two or three prospective jurors, allegedly overheard by two more. Upon hearing of the conversations, the trial judge had defense counsel identify the jurors, and the court interviewed each of the five jurors, individually, in chambers, in the absence of either counsel, but with the court reporter present. The court apparently found statements were about drugs, but non-prejudieial to defendant. Nevertheless, the judge authorized defense counsel to strike for cause any of the five jurors called as a member of the jury panel. All were called, and all were excused by defense counsel for cause..

We hold there was no error in the court’s refusal to strike the entire panel, and no prejudice to defendant existed with respect to this ruling. United States v. Klee, 494 F.2d 394 (9th Cir. 1974), reh. den. May 1, 1974.

(2) The newspaper ad (Exhibit KK) was from the San Francisco paper offering to rent a trailer. It was cumulative to the testimony of witness High-tower, the owner of the storage business where the trailer allegedly was stored. It could not corroborate the defendant because he did not testify. There was a lack of foundation to show either its relevancy or materiality. It was offered and received at the first trial of defendant without objection. At the trial the witness Hightower did not testify. Appellant urges there was a waiver of the government’s right to object, but cites no cases to support his thesis. McCormick on Evidence (1954) at 117, cited by appellant, states the general rule to be against appellant’s position.

(3) Appellant’s final point is that there was no proof the defendant knew there was marijuana in the trailer, because the marijuana odor was “very light.” However, appellant was admittedly driving the vehicle pulling the trailer over at least some 1,000 miles from San Francisco, and some 740 miles from and to Guaymas, where defendant said he had been. From the fact of his being the driver, an inference arises that he knew what was in the vehicles. United States v. Hood, 493 F.2d 677, 681 (9th Cir. 1974), reh. den. April 30, 1974; United States v. Castillo-Burgos, 501 F.2d 217 (9th Cir. 1974); United States v. Ramos, 476 F.2d 624, 625 (9th Cir. 1973); United States v. Dixon, 460 F.2d 309 (9th Cir.), cert. denied 409 U.S. 864, 93 S.Ct. 157, 34 L.Ed.2d 112 (1972); and United States v. Ascolani-Gonzales, 449 F.2d 159 (9th Cir. 1971). Entirely aside from the inference, there was other circumstantial evidence that appellant knew of his load.

Consequently, viewing the evidence in the light most favorable to the government, as we must on this or any appeal, we find no merit in the claimed insufficient evidence.

Affirmed.

       Honorable William J. Lindberg, Senior District Judge, Western District of Washington, sitting by designation.

      . This trial ended in a jury disagreement.


author: PER CURIAM.

text:
    Jerry L. HORNBECK, Appellant, v. UNITED STATES of America, Appellee.
    No. 74-1481.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 13, 1974.
    Decided Oct. 4, 1974.
    Jerry L. Hornbeck, pro se.
    Donald J. Stohr, U. S. Atty., and J. Kenneth Lowrie, Sp. Atty., Crim. Div., U. S. Dept, of Justice, St. Louis, Mo., for appellee.
    Before GIBSON, Chief Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, Senior District Judge

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   PER CURIAM.

Jerry L. Hornbeck brings this 28 U. S.C. § 2255 motion seeking to have his sentence for violating three counts of the Federal Firearms Statute, 18 U.S.C. §§ 921 et seq., vacated because the three counts were multiplicious. The three counts were as follows:

a) interstate transportation of nine firearms by a person previously convicted of a felony, in violation of 18 U.S.C. § 922(g);

b) receipt of these same nine firearms by a felon, in violation of 18 U.S. C. § 922(h); and

c) interstate transportation of these same nine firearms knowing that they had been stolen, in violation of 18 U.S.C. § 922(i).

After considering Hornbeck’s claims, District Judge James H. Meredith, finding them to be without merit, dismissed Hornbeck’s petition. He now appeals from that dismissal.

Hornbeck received five-year sentences on each count with the sentences on the first two counts to run concurrently while the sentence on the third count was to run consecutively with the sentences on counts one and two. Hornbeck claims that the three sentences should have been made to run concurrently since the three counts on which he was convicted all arose out of a single incident.

The classic test to be used in determining whether separate offenses can be carved out of a single incident is whether “each of the offenses created requires proof of a different element.” Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). We believe it is clear that completely different elements of proof are required for count three than are required for counts one and two. In counts one and two, which carried the concurrent sentences, the Government needed to prove transportation and receipt of firearms by a felon. In count three, which carried the consecutive sentence, the prosecution needed to establish that the individual transporting the firearms knew them to be stolen.

In determining whether cumulative punishments are allowed for separate aspects of a single transaction we must determine the probable intent of Congress. See Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957); United States v. Delay, 500 F.2d 1360 (8th Cir. 1974); United States v. Clements, 471 F.2d 1253 (9th Cir. 1972).

The completely different nature of the element of proof required in count three (knowledge that the weapons had been stolen) negatives any possible implication that Congress did not intend to authorize cumulative punishments for a multi-count violation of § 922. Transportation of firearms which a felon knows to have been stolen clearly should be considered more serious than an offense involving transportation, possession, and receipt of firearms which are not stolen.

Affirmed.

      . Hornbeck was convicted by aj jury on July 25, 1972, on all three counts. On his direct appeal to this court, we affirmed his conviction pursuant to 8th Cir. R. 14. United States v. Hornbeck, No. 72-1547 (8th Cir., Mar. 19, 1973).


text:
    Baltazar R. FLORES, Plaintiff-Appellant, v. Walter E. CRAVEN, Warden, Defendant-Appellee.
    No. 74-1123.
    United States Court of Appeals, Ninth Circuit.
    Sept. 10, 1974.
    Certiorari Denied Jan. 27, 1975.
    See 95 S.Ct. 833.

      Michael J. McCabe of Federal Defenders, Inc., San Diego, Cal., for plaintiff-appellant.
    Jay M. Bloom, Asst. Atty. Gen., San Diego, Cal., for defendant-appellee.
    Before CHAMBERS and GOODWIN, Circuit Judges, and KELLEHER, District Judge.

       The Honorable Robert J. Kelleher, United States District Judge for the Central District of California, sitting by designation.

   MEMORANDUM

PER CURIAM.

Flores was convicted in a California court on a narcotics charge. His co-defendant, Ramirez, became the principal witness against him after Ramirez and the prosecutor struck a bargain that all charges pending against Ramirez would be dropped, his federal parole would be revoked, and he would be sent to a federal hospital for treatment of his heroin addiction for the remainder of his parole term. Ramirez testified to the substance of this bargain on direct examination, but one element of it he did not reveal. The prosecutor possessed evidence which formed the basis for a new narcotics charge against Ramirez. After Ramirez had agreed to testify, the prosecutor informed him of this potential charge, but promised that it would not be formally filed unless it became necessary to use the charge to assure that his federal parole was revoked.

Flores claims that the prosecution, by failing to elicit testimony or otherwise disclose the existence of this element of the bargain, suppressed evidence material to a determination of Ramirez’s credibility. To justify a new trial, the unrevealed evidence must have some possibility of affecting the judgment of the trier of fact. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Here the trial judge, sitting without a jury, was aware that Ramirez was testifying in return for a promise of leniency, that his parole resulting from a conviction on federal charges was to be revoked, and that he was a heroin addict. This information encompassed all of the essential facts needed to weigh the credibility of the witness. Under these circumstances, knowledge of the additional charge, which at no time had been used to threaten Ramirez with an increased term of imprisonment, and the arrangement concerning it could not have affected the judge’s estimation of credibility. A new trial is not required. Id.

The order appealed from is affirmed.


author: DUNIWAY, Circuit Judge: RICHARD H. CHAMBERS, Circuit Judge

text:
    Millie B. HEATHMAN et al., Petitioners, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA, Respondent.
    No. 74-1438.
    United States Court of Appeals, Ninth Circuit.
    Aug. 26, 1974.
    Richard H. Chambers, Circuit Judge, filed an opinion concurring in part and dissenting in part.

      Melvyn B. Fliegel (argued) of Schwartz & Alschuler, Los Angeles, Cal., for petitioner.
    Jeffrey B. Lugash (argued), Los An-geles, Cal., for real parties in interest.
    Before CHAMBERS and DUNIWAY, Circuit Judges, and EAST, District Judge.

       The Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

Petitioners, defendants in the trial court, apply for a writ of mandamus or prohibition directing the district court to vacate its order which requires defendants’ accountants to deliver to the real parties in interest, plaintiffs in the trial court, copies of the income tax returns of Prudential Management Corporation and the San Diego Trust, together with accounting materials prepared for use in making the returns. On March 27, 1974, we stayed the district court’s order. The petition raises issues concerning the scope of civil discovery, the resolution of which is necessary to prevent the potential irreparable loss of defendants’ claimed rights. We therefore consider the merits of defendants’ claims. Pacific Car and Foundry Co. v. Pence, 9 Cir., 1968, 403 F.2d 949, 951-953; Harper and Row Publishers, Inc. v. Decker, 7 Cir., 1970, 423 F.2d 487, 492.

The contested discovery order was issued in the following context: Plaintiffs, California Professional Bureau and others, brought suit in the district court under the federal and state securities laws against petitioners and other defendants alleging the sale of securities- and real estate by improper, fraudulent and unlawful means. The complaint alleged that the various defendants were linked in an entangled network of individuals, corporations and other legal entities. In an effort to determine the nature of the interrelationship among the various defendants, plaintiffs deposed a number of the parties to the lawsuit. In the course of this discovery, it was determined that many documents that plaintiffs claimed to be relevant had been lost, destroyed or were otherwise unavailable. Plaintiffs then deposed the accounting firm of Russ and Russ and served a subpoena duces tecum upon its custodian of records. During the course of the deposition, the custodian began to turn over for inspection and copying the various documents enumerated in the subpoena which pertained to the formation and administration of the Prudential Management Corporation and the San Diego Trust. Defendant Heathman is the settlor and trustee of the San Diego Trust. Defendants objected to the disclosure of the federal and state tax returns and accounting materials related to them, of Prudential Management Corporation and of the San Diego Trust claiming that such documents were privileged. The deposition was adjourned and plaintiffs moved in the district court for an order compelling production of these documents. The district court granted that discovery motion and issued the order from which defendants seek relief.

Defendants’ principal claim is based upon their construction of state and federal laws which, they contend, make tax returns privileged documents. Defendants bear the burden of showing that the privilege exists and applies. 8 Wright & Miller, Federal Practice & Procedure: Civil, § 2016 at 126. If they cannot do so, they then bear the more formidable burden of showing that the district court’s order was an abuse of discretion. Baker v. F & F Investment, 2 Cir., 1972, 470 F.2d 778, 781.

APPLICABLE LAW

Defendants argue that under Baird v. Koerner, 9 Cir., 1960, 279 F.2d 623, we are compelled to apply California law which, it is asserted, recognizes that taxpayers’ copies of their tax returns are privileged. They rely upon Webb v. Standard Oil Co., 1957, 49 Cal.2d 509, 319 P.2d 621.

In Baird, which was a federal case, not a diversity case, we held that because the relationship of attorney and client was created and controlled by state law “the nature and extent of the privilege created ... by the attorney-client relationship” is to be determined by state law. Id. 279 F.2d at 632. Because Baird involved a civil inquiry into the identity of a person who might have been liable to pay federal taxes, that is, a federal question, the case has been cited for the broad proposition that in all cases in federal court the existence and scope of all privileges is to be determined by reference to state law. Baird lays down no such rule. By its own reasoning, it is limited to the attorney-client privilege. Baird could not, on its facts, and does not, deal with all privileges. Moreover, we held in Baird that in considering the scope of the attorney-client privilege, “each case must stand on its own facts, with the courts balancing the public policy considerations involved.” Id. at 632.

In the fourteen year's since the announcement of Baird, we have had occasion only once to rely upon it and then in a similar attorney-client situation. See United States v. Cromer, 9 Cir., 1973, 483 F.2d 99, 101-102.

As the commentators have documented, in federal question cases the clear weight of authority and logic supports reference to federal law on the issue of the existence and scope of an asserted privilege. 2B Barron & Holtzoff, Federal Practice and Procedure (Wright ed. 1961), § 967 at 243; 4 Moore’s Federal Practice, § 26.60 [7] at 26-255; 8 Wright & Miller, Federal Practice & Procedure, Civil § 2016 at 123; Proposed Federal Rules of Evidence, Rules 501-02. In essence, what Baird did was to import into federal law the. state law of attorney-client privilege. This case differs from Baird. It does not involve a privilege long and universally upheld at common law, as Baird does.

Reference to federal law is especially appropriate where, as here, the documents in question were prepared pursuant to federal law. We hold that the question of the existence and scope of the taxpayer’s privilege, if any, to withhold tax return information is to be determined by federal law for the purposes of this federal question ease. Cf. Falsone v. United States, 5 Cir., 1953, 205 F.2d 734 (claim of accountant-client privilege). We express no opinion as to other claims of privilege.

FEDERAL LAW

Defendants alternatively contend that their copies of tax returns and documents used in preparing them are privileged under federal law. They argue that 26 U.S.C. § 6103(a)(2), which restricts the publicity of tax returns and the disclosure of information as to persons filing income tax returns, impliedly makes their copies of tax returns privileged.

While it is true that some lower courts have held that § 6103(a)(2), along with 26 U.S.C. § 7213(a), reflects a public policy against disclosure of tax returns, see Federal Sav. & Loan Insur. Corp. v. Krueger, N.D.Ill., 1972, 55 F.R.D. 512, 514, defendants cite no case (and we have found none) which has held that this section makes their copies of tax returns or the underlying data privileged. Indeed, though the circuit court authority on this issue is scant, see Fulenwider v. Wheeler, 5 Cir., 1958, 262 F.2d 97, 99; June v. George C. Peterson Co., 7 Cir., 1946, 155 F.2d 963, 967, the district courts have held in numerous cases that tax returns are subject to discovery in appropriate circumstances. See 4 Moore’s Federal Practice, § 26.-61 [5.-2] at 26-294: 8 Wright & Miller, Federal Practice and Procedure, Civil § 2019 at 162-4. We hold that 26 U.S.C. § 6103(a)(2) only restricts the dissemination of tax returns by the government and that this section does not otherwise make copies of tax returns privileged.

Defendants also argue that the discovery of their copies of their tax returns violates their right of privacy and their right to be free from unreasonable searches and seizures. Neither of these contentions is supported by any authority. There is no merit in these constitutional claims. See Couch v. United States, 1973, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548.

Finally, defendants argue that the tax returns are not relevant to the instant litigation and that they should therefore have been protected from discovery. “Relevance” on discovery has a very broad meaning, Rule 26(b)(1), F. R.Civ.P., and the question is for the district court. Only in the most unusual case’might we consider reviewing a decision on this question by means of an extraordinary writ. This is not such a case.

The stay of the district court’s order is vacated and the petition for a writ of mandamus or prohibition is denied.

RICHARD H. CHAMBERS, Circuit Judge

(concurring and dissenting):

I concur in the result reached by the majority. A writ of mandamus is available only “if ordinary remedies are inadequate and there are present exceptional and extraordinary circumstances which require the issuance of an extraordinary writ to prevent a grave miscarriage of justice.” Hartley Pen Co. v. United States Dist. Ct., 287 F.2d 324, 328 (9th Cir. 1961). No such extraordinary circumstances are presented by this ease.

I dissent, however, from the views expressed by the majority. Even assuming, without deciding, that it has properly distinguished Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960), its views concerning the discovery of federal tax returns are inaccurate.

Although the literal language of 26 U.S.C. §§ 6103 and 7213 prohibits the disclosure of only those tax returns in the government’s possession, the statutes should not be construed so narrowly. Statutes have both textual and contextual meaning. Where the wording of a statute does not express fully the policies underlying the statute, courts should “give it effect in accord with its design and purpose, sacrificing, if necessary, the literal meaning in order that the purpose may not‘fail.” Acheson v. Fujiko Furusho, 212 F.2d 284, 295 (9th Cir. 1954) (six-judge panel), quoting Ozawa v. United States, 260 U.S. 178, 194, 43 S.Ct. 65, 67 L.Ed. 199 (1922).

The most frequently mentioned policy behind the statutes protecting the confidentiality of federal tax returns is that of protecting the taxpayer’s privacy. See, e.g., Wiesenberger v. W. E. Hutton & Co., 35 F.R.D. 556 (S.D.N.Y.1964); Richland Wholesale Liquors v. Joseph E. Seagram & Sons, Inc., 40 F.R.D. 480 (D.S.C.1966); Kingsley v. Delaware, L. & W. R.R. Co., 20 F.R.D. 156 (S.D.N.Y.1957). An equally important but less frequently mentioned consideration is the protection of the public fisc. See Federal Sav. & Loan Ass’n v. Krueger, 55 F.R.D. 512 (N.D.Ill.1972). Because of our system of taxation through self assessment, the maximization of federal revenue hinges on complete and detailed reporting by each taxpayer. Such reporting is in a large part nourished by the confidential nature of the tax returns. In these times of mushrooming federal budgets and increasing complexities in the federal tax laws, we should loathe tampering with the success of the reporting system.

That policies such as these are not to be ignored was demonstrated when Congress overruled St. Regis Paper Co. v. United States, 368 U.S. 208, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961). In that case St. Regis had filed detailed census reports with the Bureau as required by the Census Act but had retained copies of the reports in its own files. While investigating St. Regis, the Federal Trade Commission obtained a district court order directing St. Regis to turn over its copies of the reports. Before the Supreme Court, St. Regis argued that § 9 of the Census Act which prohibited personnel in the Department of Commerce from allowing those outside the department to examine the reports should be construed to provide the same protection for copies which are retained by the reporting party. The Court rejected this argument.

We fully realize the importance to the public of the submission of free and full reports to the Census Bureau, but we cannot rewrite the Census Act. It does not require petitioner to keep a copy of its report nor does it grant copies of the report not in the hands of the Census Bureau an immunity from legal process. Ours is a duty to avoid a construction that would suppress otherwise competent evidence unless the statute, strictly construed, requires such a result. That the statute does not do. Congress did not prohibit the use of the reports per se but merely restricted their use while in the hands of those persons receiving them, i.e., the government officials. . . .

Id. at 218, 82 S.Ct. at 295.

The decision had an extremely adverse effect on the Bureau’s ability to gather complete and accurate data. S.Rep.No. 2218, 87th Cong., 2d Sess. (1962), 1962 U.S.Code of Cong. & Admin.News 3190. Consequently, Congress quickly overruled the decision by amending § 9 to provide that copies of census reports retained by individuals are immune from legal process and inadmissible as evidence without the reporting party’s .consent. In recommending the amendment, the Senate Report stated, “Prior to the decision of the Supreme Court, it had been generally assumed that copies of such census reports did, in fact, have confidential status equivalent to that of the original reports filed with the Bureau of the Census.” Id. at 3189.

The majority’s observation that numerous district courts have held federal tax returns to be discoverable “in appropriate circumstances” is correct, but incomplete. It is true that several cases have held that the returns were discoverable upon a mere showing that they might contain information that would lead to other relevant information. See, e.g., Jensen v. Boston Ins. Co, 20 F.R.D. 619 (N.D.Cal.1957); Connecticut Mut. Life Ins. Co. v. Shields, 18 F.R.D. 448 (S.D.N.Y.1955); Paramount Film Dis-trib. Corp. v. Ram, 91 F.Supp. 778 (E. D.S.C.1950). In the vast majority of cases, however, the courts have prefaced discovery with the fact that the party seeking to protect its return had chosen to litigate issues relating to its income. See, e.g., Federal Sav. & Loan Ass’n v. Krueger, supra; Wiesenberger v. W. E. Hutton & Co, supra; Kingsley v. Delaware, L. & W. R.R. Co, supra; Connecticut Importing Co. v. Continental Distilling Corp, 1 F.R.D. 190 (D.Conn.1940).

Those latter cases demonstrate a proper balancing of the need for interpreting 26 U.S.C. §§ 6103 and 7213 narrowly in order to facilitate liberal discovery and the need for interpreting the statutes broadly in order to effectuate their underlying policies. Copies of tax returns retained by a taxpayer should be accorded the protection of 26 U.S.C. §§ 6103 and 7213, unless the taxpayer chooses to litigate issues concerning the taxpayer’s income. Once the taxpayer so chooses, he waives his privilege and consents to all legitimate inquiries into his income.

Insofar as the petitioners in this case have not sought to litigate any issue concerning their income, their federal tax returns should remain privileged.

      . All but two of the eight opinions of our sister circuits which have relied upon Baird have also involved the attorney-client privilege. See Hyde Construction Co. v. Koeliring Co., 5 Cir., 1972, 455 F.2d 337, 340 (diversity case); United States v. Woodall, 5 Cir., 1970, 438 F.2d 1317 (federal criminal case); American Can Co. v. Citrus Feed Co., 5 Cir., 1971, 436 F.2d 1125 (diversity case — question was disqualification of attorney, not privilege); Love v. United States, 8 Cir., 1967, 386 F.2d 260, 265 (federal criminal case); Republic Gear Co. v. Borg-Warner Corp., 2 Cir., 1967, 381 F.2d 551, 556 (diversity case); Tillotson v. Boughner, 7 Cir., 1965, 350 F.2d 663, 665-666 (federal tax investigation); NLRB v. Harvey, 4 Cir., 1965, 349 F.2d 900 (federal case); Krizak v. W. C. Brooks & Sons, Inc., 4 Cir., 1963, 320 F.2d 37 (diversity case — confidentiality of accident reports to state).

      . Defendants have not suggested that state tax returns be treated differently from federal returns nor have they offered any interest that the state may have in treating state tax returns differently from federal tax returns in this case. In fact, in the case cited to us by petitioners, Webb v. Standard Oil Co., supra, Chief Justice Gibson pointed out that under certain circumstances some of the information contained in state and federal tax forms is identical. In light of this overlap of. information and the federal nature of this litigation, we see no reason to differentiate between state and federal tax returns.

       The Court went on to note that “although tax returns, like these census reports, are made confidential within the government bureau . . . copies in the hands of taxpayers are held subject to discovery.” This dictum was supported by citing United States v. O’Mara, 122 F.Supp. 399 (D.D.C. 1954), with the notation that O’Connell v. Olsen & Ugelstadt, 10 F.R.D. 142 (N.D.Ohio 1949), is contra. Perhaps an analysis of the tax return cases would have brought the Court to the same conclusion as reached by Congress in overruling St. Regis.


author: JAMES M. CARTER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Wardell L. SMITH, Jr., Defendant-Appellant.
    No. 74-1866.
    United States Court of Appeals, Ninth Circuit.
    Sept. 26, 1974.
    Certiorari Denied Jan. 20, 1975.
    See 95 S.Ct. 810.

      Samuel F. Adam (argued), Chicago, 111., for defendant-appellant.
    Christopher Pickrell, Asst. U. S. Atty.. (argued), Tucson, Ariz., for plaintiff-ap-pellee.
   OPINION

Before BARNES and CARTER, Circuit Judges, and LINDBERG, District Judge.

JAMES M. CARTER, Circuit Judge.

This is an appeal from the judgment of conviction for knowingly and intentionally possessing with intent to distribute 341 grams of cocaine and 112 grams of heroin, in violation of 21 U.S. C. § 841(a)(1). The defendant, Wardell L. Smith, Jr.’s primary contention on appeal is that the trial court erred in denying his motion to suppress evidence obtained pursuant to a strip search. We conclude that the reliability of information supplied to special agents by an informer was confirmed prior to the search and that the motion to suppress was therefore properly denied. We affirm.

At approximately 4:00 p. m. on August 30, 1973, Customs Inspector John Jackson observed a tall Negro male in his early twenties, wearing a large, floppy-brimmed hat and see-through fishnet shirt, enter Mexico at the Nogales, Arizona port of entry. He was accompanied by a light-skinned Negro female, wearing a light-colored jacket. Inspector Jackson later identified the light-skinned female as Caroline Brown.

At approximately 8:00 p. m. that evening, Inspector Jackson observed the same tall Negro male re-enter the United States. This time he was alone. Inspector Jackson questioned him, and the man identified himself as Wardell Smith from Tucson and stated that he was then living with his aunt in Tucson. In the defendant’s pocket Inspector Jackson found a piece of paper with the name “Johnny” and a Mexican Nogales phone number on it. Suspecting that “Johnny” might be Johnny Grant, a big-time narcotics dealer in Mexico, Jackson memorized the number and released the defendant. When he later called the number, the person answering the call identified himself as “Johnny” and told Jackson that he could make a big narcotics deal with him the following day.

Later that same evening at about 10:00 p. m., Zachary Brown and Caroline Brown were arrested with heroin at the Nogales border. Zachary was questioned by Agent Wayne Brown. He told agent Brown that he

“was nothing but a poor sick Junkey, that if I was seriously interested in catching someone who did have a quantity of cocaine on them at that time, that he could help me [A]t that very moment there were two individuals in Tucson at the International Airport waiting to board a flight to Chicago, he thought the departure of that flight would be 11:15 p. m.....[0]ne of the individuals was a tall, thin Negro male in his 20’s, that he was wearing a large floppy-brim hat, and a fishnet shirt, black on [sic] color. . . . [A]long with that person would be a very, very light-skinned, what he thought was a Negro female, she would be wearing a red pants suit, the two of them were traveling together, he said he had traveled to Nogales, Sonora with the two of them that day, that when the female returned from the Republic of Mexico to the United States she was carrying thirteen ounces of cocaine. He said that the two of them would board the flight to Chicago and leave that evening.”

The information from Agent Brown and Inspector Jackson was relayed to Tucson by radio and received there at 10:30 p. m. by Agents McBride and Bock. They went to the Tucson airport and observed a man fitting the descriptions given by Jackson and Zachary Brown and a woman fitting the description given by Zachary Brown. They were standing at the ticket desk and had purchased two plane tickets to Chicago for the 11:00 p. m. flight in the name of Mr. and Mrs. Smith. A search of the defendant revealed, a piece of paper hidden in his underwear, with a date of August 30, 1973, in one corner and six columns totalling about $10,800. A search of his companion revealed cocaine and heroin in her girdle. Smith later told agents that the narcotics had been purchased from Johnny Grant in No-gales, Mexico.

Since this was not a border search, the denial of the motion to' suppress can be upheld only if there was probable cause. The Supreme Court in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), recognized that probable cause may be established based upon an informant’s tip if there is subsequent corroboration of the details of the tip to insure reliability.

Although in Draper, supra, the informer had provided accurate and reliable information in the past, he had not indicated the source of his present information, nor why it was reliable. The Court did not establish past reliability of the informer as essential to a finding of probable cause, however. Rather, the Court cited Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925) for the proposition that probable cause exists where “ ‘the facts and circumstances within their [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” Draper v. United States, supra, 358 U.S. at 313, 79 S.Ct. at 333.

In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the Court made it clear that an informer’s reliability can be verified on grounds other than past reliability: the reasonableness of his access to accurate knowledge concerning the suspect, independent corroboration of the informer’s information, and independent investigation indicating the likelihood, apart from the informer’s information, that the suspect was in possession of contraband. Id. at 417, 89 S.Ct. 584. In Draper, supra, appearance of a man at the time specified by the informer, and whose dress corresponded precisely to the informer’s detailed description indicated that “the report was of the sort which in common experience may be recognized as having been obtained in a reliable way” and it was therefore “perfectly clear that probable cause had been established.” Id. at 417-418, 89 S.Ct. at 590.

Here, as in Draper, supra, the arresting officers, Bock and McBride, were acting upon information furnished by an informant. That information was a tall Negro male, wearing a floppy-brimmed hat and black-see-through fishnet shirt, had purchased cocaine in No-gales and was planning to return to Chicago at approximately 11:15 p. m. that evening. The informer also stated that the suspect would be accompanied by a light-skinned Negro female.

This information was corroborated in its entirety by Agents Bock and McBride at the Tucson Airport. Further, independent investigation indicated that the suspect had been observed earlier that day in Nogales, Mexico, and was in possession of a telephone number belonging to a man named Johnny, who the agents believed to be Johnny Grant, a well-known narcotics dealer, and who in any event offered to sell the agents narcotics the next day. The suspect had traveled to Mexico with a Caroline Brown who, with her husband, Zachary Brown, was later arrested in possession of narcotics at the border. It was Zachary Brown who informed the agents that the suspect would be returning to the United States with thirteen ounces of heroin. Since the suspect had arrived in Mexico with the informer’s wife, returned with a woman known to and described by the informer, and was in possession of the phone number of a known narcotics dealer, the informer’s information was clearly “of the sort which in common experience may be recognized as having been obtained in a reliable way.” Spinelli, supra, at 417-418, 89 S.Ct. at 590.

We hold, therefore, that probable cause for the strip search did in fact exist., The defendant’s contention that the search was invalid because the agents were acting on information received by radio bulletin is without merit. Gee Whitely v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306 (1971) (Unless the facts known to the broadcasting officer were incorrect or insufficient, the “police were entitled to act on the strength of the radio bulletin”).

The defendant’s contention that even if there was probable cause for the search, the strip search conducted was invalid without first obtaining a warrant, is equally unavailing. Although law enforcement officers must obtain a warrant whenever possible, they are permitted to make warrantless searches when probable cause exists and contraband is “threatened with imminent removal or destruction.” Hernandez v. United States, 353 F.2d 624, 627 (9 Cir. 1965). See United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). “Where the exigencies of time and the possible removal of the contraband to another state create an emergency, no warrant is required.” United States v. Ogden, 485 F.2d 536, 540 (9 Cir. 1973).

In the present case, Agents Bock and McBride received the radio message concerning the defendant at 10:30 p. m. They then went to the Tucson airport where their information was confirmed. They found the defendant and his companion at the ticket counter, preparing to board an 11:00 p. m. flight to Chicago. The defendant had to be either held or permitted to board the plane and depart the jurisdiction. To hold him while a warrant was being procured would have been the equivalent of an arrest or seizure. See Chambers v. Maro-ney, 399 U.S. 42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). “Where there are exigent circumstances in which police action literally must be ‘now or never’ to preserve the evidence of the crime, it is reasonable to permit action without prior judicial evaluation.” Roaden v. Kentucky, 413 U.S. 496, 505, 93 S.Ct. 2796, 2802, 37 L.Ed.2d 757 (1973). The motion to suppress was properly denied.

We have reviewed the defendant’s other allegations of error and find them to be without merit.

The judgment of conviction is affirmed.

       Honorable William J. Lindberg, Senior United States District Judge, Western District of Washington, sitting by designation.

      . Other circuits have likewise found reliability on the basis of likelihood of access to accurate knowledge and detailed corroboration. See, e. g., United States v. Horton, 488 F.2d 374, 379 (5 Cir. 1973) (“Although the informant under these facts was anonymous, there was sufficient corroboration of the details of the report to establish both the reliability of the informant and that the informant had obtained his information in a reliable way”); United States v. Dzialak, 441 F.2d 212, 216 (2d Cir. 1971).


text:
    Jack YBARRA, also known as Isaias M. Ybarra, individually and as president of the Confederacion de la Raza Unida, et al., Plaintiffs-Appellants, v. CITY OF SAN JOSE, a Municipal Corporation, et al., Defendants-Appellee.
    No. 72-1912.
    United States Court of Appeals, Ninth Circuit.
    Dec. 16, 1974.

      Grace M. Kubota (argued), of Kubota, Manley & Newman, San Jose, Cal., for plaintiffs-appellants.
    Richard Marston (argued), San Jose, Cal., Norman E. Matteoni, San Jose, Cal. (argued for Santa Clara), of Santa Clara County Counsel, for defendants-appel-lees.
    Before KOELSCH, BROWNING, and CHOY, Circuit Judges.
   OPINION

PER CURIAM:

It was not proper to dismiss this action on the ground stated by the district court, namely, that in view of that court’s earlier ruling in Diaz v. San Jose Unified School District, No. C-71 2130 (January 11, 1971), “plaintiffs cannot make out any showing of de jure segregation by the school board.”

The Diaz ruling was on a motion for a preliminary injunction, and was not a final determination of the issues presented, even assuming that if it were it would bind all plaintiffs in this action. And there are other difficulties.

The Diaz ruling apparently rested on the premise that no constitutional violation can occur when the “School District has adhered to a ‘neighborhood school policy,’ with the result that ethnic composition of the schools merely reflects residential patterns.” This precise issue was reserved in Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 211-212, 93 S.Ct. 2686, 2698-2699, 37 L.Ed.2d 548 (1973); Kelly v. Guinn, 456 F.2d 100, 106 n. 7 (9th Cir. 1972); and Johnson v. San Francisco Unified School District, 500 F.2d 349, 351 n. 1 (9th Cir. 1974). See also Henry v. Clarksdale Municipal Separate School District, 409 F.2d 682, 689 (5th Cir. 1969). A legal principle so unsettled does not constitute an “insuperable bar to relief,” and therefore does not justify dismissal for failure to state a claim upon which relief may be granted. Corsican Productions v. Pitchess, 338 F.2d 441, 442-443 (9th Cir. 1964), quoting Wright, Federal Courts 250 (1963); Harman v. Valley National Bank, 339 F.2d 564, 565 (9th Cir. 1964).

Moreover, assuming school authorities were not chargeable with acts of discrimination, relief might be granted if segregation in the schools resulted from the acts of other state agencies. Acts of state agencies other than the school administration formed part of the basis upon which relief from school segregation was granted in Milliken v. Bradley, - U.S. -, -, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974). Among the non-school board acts relied upon by the district court in Milliken were state acts that resulted in segregated housing. The Court of Appeals did not rely upon these particular acts, however, and therefore the case as it reached the Supreme Court did not present any issue regarding state housing violations. - U.S. at-n.7, 92 S.Ct. at 3119. However, Mr. Justice Stewart, concurring, said: “Were it to be shown, for example, that state officials had contributed to the separation of the races ... by purposeful racially discriminatory use of state housing or zoning laws” relief might be appropriate. -U.S. at-, 92 S.Ct. at 3132.

City zoning ordinances that differentiated between black and white residential areas on the basis of density of occupation were an element of state conduct underlying the finding of unconstitutional school segregation in Swann v. Board of Education, 402 U.S. 1, 7, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), as the Court of Appeals opinion reflects. See 431 F.2d 138, 141 (4th Cir. 1970). The Supreme Court did not reach the question whether, absent participation by school authorities, a school desegregation decree would be a proper form of relief. 402 U.S. at 23, 91 S.Ct. 1267. Even if it would not, it would not follow that all relief could be denied.

State action related to land use control, tainted by racial discrimination, has been held violative of the Equal Protection Clause in a variety of other contexts. E. g., United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, 493 F.2d 799 (5th Cir. 1974); Kennedy Park Homes Ass’n v. City of Lackawanna, New York, 436 F.2d 108 (2d Cir. 1970); Dailey v. City of Lawton, Oklahoma, 425 F.2d 1037 (10th Cir. 1970). See also English v. Town of Huntington, 448 F.2d 319, 323, 324 (2d Cir. 1971); SASSO v. City of Union City, California, 424 F.2d 291, 295-296 (9th Cir. 1970). We are not prepared to hold at this stage of the proceeding that relief is necessarily precluded because the injury complained of in this case, segregated schools, is one step removed from the cause. James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971), and Ybarra v. City of Town of Los Altos Hills, 503 F.2d 250 (9th Cir. 1974), are not to the contrary; both rest on records that failed to support any claim of racial discrimination.

Paragraph 24 of the complaint alleges that the appellees “discriminate in the granting of variances, zoning, and building permits to developers of land in such a way as to create ethnically imbalanced and economically imbalanced neighborhoods, all of which leads to ethnically imbalanced education system such as presently exists in the aforementioned school districts and schools within the City of San Jose.” In view of this charge of racial discrimination, and the authorities cited, we think it was error to dismiss the complaint for failure to state a claim upon which relief can be granted. It is true that most of the authorities referred to antedate the dismissal, but we are required to test the adequacy of the complaint by the law as it exists at the time the appeal is decided. See United States v. Alabama, 362 U.S. 602, 604, 80 S.Ct. 924, 4 L.Ed.2d 982 (1960); and Arfons v. E. I. DuPont De Nemours & Co., 261 F.2d 434, 436 (2d Cir. 1958).

Appellees argue that paragraph 24 is a “catchall pleading,” too vague to state a claim for relief. However, “ ‘mere vagueness or lack of detail is not ground for a motion to dismiss, but should be attacked by a motion for a more definite statement.’ ” Harman v. Valley National Bank, supra, 339 F.2d at 567, quoting 2 Moore’s Federal Practice II 12.08, at 2245-2246. On remand, the County may renew its pending motion for a more definite statement.

Appellees argue that granting the particular relief sought by appellants would violate the constitutional rights of affected landowners. Assuming the particular relief requested in the complaint could not be granted, that alone would not render the complaint legally insufficient. Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 925-926 (2d Cir. 1968).

Appellees challenge appellants’ standing; but solely on the ground that appellants do not allege ownership of land in the areas affected. The injury of which appellants complain is the segregation of schools. The causal relationship between that injury and the alleged discriminatory administration of the zoning ordinances is not so attenuated as to deny standing to at least the minor appellants. See United States, v. SCRAP, 412 U.S. 669, 688-689, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973).

The motion to dismiss for failure to join indispensable parties may be renewed below. If the parties in question are found to be indispensable, it may well be that they can be effectively joined, in which case dismissal of the action would be improper. See 3A Moore’s Federal Practice 119:19, at 2583.

Questions regarding jurisdiction over the City and County also remain open on remand. See Ybarra v. City of Town of Los Altos Hills, supra; United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, supra, 493 F.2d at 801-802.

Reversed.

      . The School District was not a party to this proceeding when the motion to dismiss was granted. Presumably the trial court recognized that the School District might be added as a party “at any stage of the action.” Fed. R.Civ.P. 21.

      . In Soria v. Oxnard School District Board of Trustees, 488 F.2d 579, 586 (9th Cir. 1973), we indicated that one of the several elements to be considered by the district court on remand in connection with whether the school board had engaged in intentional segregation was if the existing imbalance in the schools was caused by neighborhood population patterns.


author: BURNS, District Judge:

text:
    Kaj KLING, an individual, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 73-2871.
    United States Court of Appeals, Ninth Circuit.
    Jan. 2, 1975.

      Albert J. Kline, San Rafael, Cal. (argued) Salle S. Soladay, San Rafael, Cal., for appellant-petitioner.
    Alan Cirker (argued), of Gen. Counsel, NLRB, Washington, D. C., for respondent NLRB.
    Before WRIGHT and CHOY, Circuit Judges, and BURNS, District Judge.

       Honorable James M. Bums, United .States District Judge, District of Oregon, sitting by designation.

   OPINION

BURNS, District Judge:

In late October 1971, Kaj Kling, a long-time machinist employee of West Winds Inc., tried to return to his job after a leave of absence that had begun in June of that year. The machinists union stripped him of his seniority rights. Rather than return to work without seniority, Kling left West Winds and thereafter filed an unfair labor practice complaint with the National Labor Relations Board. After a hearing, the administrative law judge concluded that the union had engaged in unfair labor practices by causing the constructive discharge of Kling and issued a recommended order requiring the union to pay damages and to cease and desist. On appeal the Board dismissed the complaint, finding that the union’s actions were reasonable and were not improperly motivated. Our jurisdiction is based upon 29 U.S.C. § 160(f).' We grant the petition for review, vacate the order of the NLRB and reinstate the order of the administrative law judge.

In June 1971 Kling asked for a two-month leave of absence. This request was formalized in a letter dated June 1. Shortly after Kling’s departure, the shop steward told the employer he did not want Kling to return with full seniority, but stated no reasons. The company notified the union by both letter and telephone of Kling’s leave. On July 22 Kling by letter to the employer requested and was granted an extension until August 15. On August 14 Kling’s wife called the employer to request a second extension, which was also granted. Again a letter followed up the telephone request. The company promptly notified the union of each of these extensions.

In October the shop steward and another union representative told a company official that Kling should be treated as a “voluntary quit” and as such would lose his seniority rights. A letter of October 22, 1971, from the union advised the company that Kling had lost his seniority rights because he failed to inform the union of his first extension request “as provided in the agreement covering leaves of absence.” When Kling finally attempted to return to work, the union stated that Kling had failed to request an extension of his original leave of absence before it expired.

It is an unfair labor practice in violation of § 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act for a bargaining representative to act in an unreasonable, arbitrary, or invidious manner in regard to an employee. Miranda Fuel Company Inc., 140 NLRB 181 (1962). Though enforcement was denied by the Second Circuit, NLRB v. Miranda Fuel Co. (1963), 326 F.2d 172, the Board’s Miranda Fuel doctrine appears to have won the day, as shown by the later favorable quotation in Vaca v. Sipes, 386 U.S. 171 at 177, 87 S.Ct. 903, 17 L.Ed.2d 842. Similar in its facts and compelling in its argument, Miranda Fuel should, in our view, control the result here. In both cases, there was evidence of undue pressure from fellow employees and from the union shop steward. In both cases, the*seniority reduction was sought without valid reason and hence was an arbitrary exercise of union power.

The union offered one after another three different reasons why Kling should lose his seniority. All are flimsy. First, the shop steward claimed that Kling was a “voluntary quit.” Kling’s carefully requested leaves, each of which indicated his intention to return to the company, cannot be interpreted as a “quit.” Second, the union claimed Kling violated the bargaining agreement by not reporting his leave to them. No provision of the agreement required such reporting. Nor was Kling aware of any union rule requiring him to report any request for a leave of absence or an extension thereof. Finally, the union claimed that Kling’s first extension was invalid because it occurred after his original leave had expired. Evidence in the record is somewhat conflicting, but there is ample support for the finding of the administrative law judge, accepted by the Board, that the original leave was for two months. The first request for an extension was made well within that time. Upon this record we find no evidence to support the Board’s finding that the union’s actions were reasonable. Although decisions of the Board are entitled to great respect by a reviewing court, they will be set aside if the record clearly precludes the Board’s decisions and the evidence calls for inferences contrary to those drawn by the Board. Universal Camera v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; NLRB v. Len-kurt Electric Co., 438 F.2d 1102 (9th Cir. 1971). We are convinced by a thorough review of the record that the union’s arbitrary action in this case violated its duty of fair dealing with its members, Beriault v. Local 40, 501 F.2d 258, (9th Cir. 1974), and Member Kling’s right of “fair representation.” Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).

Although it appeared from the briefs and from an exhibit (J — 1) that on June 23, 1972, the union sent a letter to the company stating that effective June 26, 1972, Kling could return to work with his full seniority, we were told at oral argument that he had not in fact done so. The explanation given is that by resisting this appeal, the Board continued to insist that Kling had lost his seniority rights completely. Our decision makes it unnecessary for us to untangle this matter: the case will be remanded for further appropriate proceedings to determine Kling’s monetary loss.


text:
    COMMERCE BANK OF UNIVERSITY CITY, a corporation, Appellee, v. EDCO FINANCIAL SERVICES, a corporation, Appellant.
    No. 74-1622.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 9, 1975.
    Decided Jan. 14, 1975.
    Theordore F. Schwarts, Clayton, Mo., for appellant.
    Jerome M. Rubenstein, Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., for appellee.
    Before GIBSON, Chief Judge, and HEANEY and ROSS, Circuit Judges.
   PER CURIAM.

Upon a careful consideration of the record, briefs and arguments of the parties, the court has concluded that summary judgment for plaintiff Commerce Bank of University City was properly awarded by the District Court. The two questions in the case, whether personal jurisdiction was properly asserted over defendant EDCO Financial Services and whether Commerce Bank was a holder in due course of checks issued by defendant, are conclusively answered in the affirmative by the record.

Defendant’s affidavit in opposition to summary judgment establishes that defendant was doing business in the State of Missouri, the test for long-arm personal jurisdiction under Mo.Rev.Stat. § 506.500(1) (1969). Defendant further admitted in responses to interrogatories that there were no infirmities or defects in the checks. There is no dispute that Commerce Bank did give value for the checks or that EDCO did stop payment on the checks.

The defense raised by appellant EDCO under Mo.Rev.Stat. § 400.4 — 201 (1969) that the bank was an agent of its depositor and thus subject to all defenses that could be raised by EDCO against the depositor is not well taken. Central Bank & Trust Co. v. First Northwest Bank, 332 F.Supp. 1166, 1170 (E.D.Mo. 1971), aff’d, 458 F.2d 511 (8th Cir. 1972); Citizens National Bank v. Fort Lee Savings & Loan Association, 89 N.J.Super. 43, 46, 213 A.2d 315, 317 (1965). Thus, Commerce Bank, having taken the checks without notice of infirmities is a holder in due course and is entitled to recover to the extent it has given credit for them.

The judgment of the District Court is affirmed.


text:
    Manuel L. JOSE, Plaintiff-Appellant, v. Tomas R. MESA, Jr., Executive Director of the Elections Commission, Territory of Guam and the Elections Commission, Territory of Guam, Defendants-Appel-lees, Joseph M. Borja, Intervenor-Appellee.
    No. 74-2343.
    United States Court of Appeals, Ninth Circuit.
    Sept. 20, 1974.
    Manuel L. Jose, in pro per.
    Jack Rosenzweig (argued), Agana, Guam, for defendants-appellees.
    Joseph M. Borja pro per.
    Trapp, Gayle, Teker, Weeks, & Friedman, Agana, Guam, for intervenor-ap-pellee.
    Before CHOY, Circuit Judge, and PENCE  and KING, District Judges.

       Honorable Martin Pence and Honorable Samuel P. King, United States District Judges, Honolulu, Hawaii, sitting by designation.

   OPINION

PER CURIAM:

Appellant, a Guam citizen, brought this action against certain Guam election officials challenging the island’s primary system for the selection of party candidates for governor and lieutenant governor. Under a statute amended in 1974, § 2933(a) of the Government Code of Guam, a slate of candidates for the top two executive positions need only receive a plurality of the vote in the June primary to be nominated for the November general election. Appellant claims that this contravenes § 6 of the Organic Act of Guam, 48 U.S.C. § 1422. Passed by Congress in 1968, § 6 for the first time permitted the people of Guam to elect their governor and lieutenant governor. In pertinent part it provides:

The Governor of Guam, together with the Lieutenant Governor, shall be elected by a majority of the votes cast by the people who are qualified to vot for the members of the Legislature of Guam . . . . If no candidates receive a majority of the votes cast in any election, on the fourteenth day thereafter a runoff election shall be held between the candidates for Governor and Lieutenant Governor receiving the highest and second highest number of votes cast. The first election for Governor and Lieutenant Governor shall be held on November 3, 1970. Thereafter, beginning with the year 1974, the Governor and Lieutenant Governor shall be elected every four years at the general election.

It is argued that the phrase “in any election” is not limited solely to general elections, but applies to primaries as well. Thus, appellant contends, nomination in a primary requires a majority, not simply a plurality.

The district court held that the Organic Act’s majority requirement was applicable only to general elections and dismissed the complaint. We affirm.

Below, appellee contested Jose’s standing to sue. Appellant, however, has standing as a voter. The interest he asserts is the deprivation of the opportunity to vote in a runoff election between the two top finishers in either of the party primaries. Cf. Valenti v. Rockefeller, 292 F.Supp. 851, 853 n. 1 (W.D.N.Y.1968), aff’d per curiam, 393 U.S. 405, 89 S.Ct. 689, 21 L.Ed.2d 635 (1969).

As to the merits, we agree fully with the district court. Directly after the “in any election” language in § 6 appears the sentence: “The first election for Governor and Lieutenant Governor shall be held on November 3, 1970.” Congress’ repetition of the unqualified term “election” in this sentence indicates that the draftsman meant “general election” by the use of the term “election” throughout the section; otherwise, it would have been natural to add the word “general” to this sentence setting the election date.

The probable understanding of Congress is also illuminated by the absence of a primary system in Guam prior to the passage of § 6 in 1968. Candidates for the elective legislature were nominated in party conventions. It is probable, therefore, that Congress did not comtemplate primaries when § 6 was drafted.

Our conclusion, finally, is supported by the one case foimd in point — Wagner v. Gray, 74 So.2d 89 (Fla.1954). There, the Florida Supreme Court interpreted a provision in the state’s constitution which was similar to § 6 of the Guam Organic Act and held it applicable only to general elections.

Affirmed.

      . Emphasis added.


text:
    William G. WEBER, Plaintiff-Appellee, v. SECRETARY OF HEALTH, EDUCATION, AND WELFARE, Defendant-Appellant.
    No. 73-3593.
    United States Court of Appeals, Ninth Circuit.
    Sept. 13, 1974.

      Michael Kimmel (argued), App. Section, Civ. Div., U. S. Dept, of Justice, Washington, D. C., for defendant-appellant.
    Michael P. Balaban (argued), Beverly Hills, Cal., for amicus U. S. Magistrates.
    Before CHAMBERS and CHOY, Circuit Judges, and McNICHOLS, District Judge.

      Honorable Ray McNichols, Chief Judge, United States District Court for the District of Idaho, sitting by designation.

   OPINION

PER CURIAM:

This interlocutory appeal presents another in what will, no doubt, be an ongoing series of cases designed to judicially establish the perimeters of powers and duties which may be delegated to United States magistrates under the broad general authority statutorily provided by 28 U.S.C. § 636(b).

General Order No. 104-D adopted by the district court provides, inter alia, for reference to a full-time U. S. magistrate of all “actions to review administrative determinations re (sic) entitlement to benefits under the Social Security Act and related statutes, including but not limited to actions filed under 42 U.S.C. § 405(g)”.

William G. Weber (herein designated as “appellee”, but not truly a party to this appeal) brought an action in the district court to review a final determination of the Secretary as authorized by 42 U.S.C. § 405(g). The case was referred to a magistrate as provided by General Order No. 104-D. A motion by the Secretary praying to have the order of reference rescinded was denied and subsequently authorization for this interlocutory appeal as permitted by 28 U.S.C. § 1292(b) was granted.

The Secretary initially contends that the rule calling for routine references of action seeking judicial review of Social Security cases constitutes a blanket reference to special masters and is thus repugnant to Rule 53(b), Federal Rules of Civil Procedure. We simply disagree with this analysis.

Of more moment is appellant’s attack on the practice of the court below (1) as being beyond the intended authority of the Federal Magistrate Act; (2) as contravening the purposes of the judicial review provided for under the Social Security Act; and (3) as inconsistent with Article III of the United States Constitution.

For the purposes of this appeal we are only interested in what this ease is about, not what it might have been about.

The scope of judicial review of final determinations by the Secretary in actions such as that before us is narrowly circumscribed by the statute. The district court is limited to an examination of the administrative record to determine if there is substantial evidence in the record to support the decision of the Secretary. The findings of the Secretary as to any fact, if supported by substantial evidence, is conclusive. Appellant conceded at argument that the procedure followed under the rule objected to is for the magistrate to examine the written administrative record and make a recommendation to the judge. The parties are advised of the magistrate’s initial opinion and are afforded time to present objections. If objection be made, an opportunity is given to present briefs and argument in support thereof. The magistrate may then revise his original recommendation or adhere to it. Under either contingency he then forwards his recommendation and the administrative record together with a report of proceedings before him, if any, to the judge for final action.

As so applied, we hold that the delegated authority is well within the intent of Congress in adopting the Magistrate Act; that the judicial review contemplated by the Social Security Act is adequately provided and that the procedure comports with the requirement of exercise of judicial power under Article III of the United States Constitution. Were the broad provisions of General Order No. 104-D to be resorted to in the type of judicial review before us, the Secretary might have grounds to complain. As applied, the rule is not vulnerable to the attack here mounted.

We believe our holding is consistent with the teachings of both Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974) and Campbell v. United States District Court, 501 F.2d 196 (9th Cir. 1974).

Affirmed.

      . In view of this limitation on the scope of review, the language in General Order No. 104-D providing for findings by the magistrate is at worst surplusage.


text:
    The NATIONAL ETHICAL PHARMACEUTICAL ASSOCIATION and Pharmaceutical Associates, Inc., Appellants, v. Caspar W. WEINBERGER, as Secretary of Health, Education, and Welfare of the United States of America, and Alexander M. Schmidt, M.D., as Acting Commissioner of the Food and Drug Administration, Appellees.
    No. 73-2449.
    United States Court of Appeals, Fourth Circuit.
    Argued May 7, 1974.
    Decided Oct. 1, 1974.

      Richard N. Tapp, Greenville, S. C. (Sol E. Abrams and George F. Townes, Greenville, S. C., on brief), for appellants.
    John S. Eldred, Atty., Office of the General Counsel, Food and Drug Division, U. S. Dept, of Health, Education and Welfare (Peter Barton Hutt, Asst. Gen. Counsel, Joanne S. Sisk, Chief, Appellate and Special Proceedings Branch, Thomas E. Kauper, Asst. Atty. Gen., Antitrust Div., Gregory B. Hovendon, Chief, Consumer Affairs Section, U. S. Dept, of Justice and Dept, of Health, Education and Welfare, on brief), for appellees.
    Before BOREMAN and BRYAN, Senior Circuit Judges, and FIELD, Circuit Judge.
   PER CURIAM:

This is an action by National Ethical Pharmaceutical Association, a trade association, and Pharmaceutical Associates, Inc., one of its member companies, seeking judicial review pursuant to the Administrative Procedure Act (5 U. S.C. §§ 701-704), of the regulation by the Food and Drug Administration of certain drugs which were treated as “new drugs,” and for a declaratory judgment pursuant to the Declaratory Judgment Act (28 U.S.C. § 2201) that those drugs are not “new drugs.” Such a declaration would exempt those drugs from rigid premarketing standards regarding manufacture and purity and other safety requirements prescribed by the Food and Drug Administration for all “new drugs.”

Upon motion of the defendants the district court dismissed the action without prejudice pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. The court held that the matter lay within the primary jurisdiction of the Food and Drug Administration and that only after plaintiffs had petitioned for and obtained a formal administrative ruling on the status of the specified drugs would judicial review be available. With respect to the prayer for a declaratory judgment the court held that “it should, in the exercise of its sound discretion under the Declaratory Judgment Act, refuse to take jurisdiction” and should dismiss the action.

Upon consideration of the briefs, appendix and oral arguments of counsel we are of the opinion that the dismissal of the action by the district court was proper for the reasons set forth in its Order.

Affirmed.

      . The Order of the district court is reported as National Ethical Pharmaceutical Ass’n v. Weinberger, 365 F.Supp. 735 (D.S.C.1973).


text:
    Peter CAPARRO, Plaintiff-Appellant, v. KONINKLIJKE NEDERLANDSCHE STOOMBOOT MAATSCHAPPIJ, N.V., Defendant-Appellee.
    No. 22, Docket 74-1359.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 25, 1974.
    Decided Oct. 9, 1974.
    Martin M. Baxter, New York City (Zimmerman & Zimmerman, New York City, on the brief), for plaintiff-appellant.
    William M. Kimball, New York City (Burlingham, Underwood & Lord, New York City, on the brief), for defendant-appellee.
    Before LUMBARD, FEINBERG and OAKES, Circuit Judges.
   PER CURIAM:

Peter Caparro, a longshoreman, appeals from a judgment for defendant Koninklijke Nederlandsche Stoomboot Maatschappij, N.V., owner of the vessel upon which plaintiff allegedly sustained injury in September 1971. Plaintiff brought this suit, claiming negligence and unseaworthiness, a year later in the United States District Court for the Southern District of New York. After a separate trial on liability, Judge Harold R. Tyler, Jr., directed a verdict for defendant on the negligence claim but submitted the unseaworthiness issue to the jury. After a verdict for plaintiff, the judge granted defendant’s motion for judgment notwithstanding the verdict. We affirm the judgment of the district court.

Upon the most liberal view of the evidence, plaintiff showed only that an accident occurred when a carton weighing over 250 pounds was placed by plaintiff’s hatch boss upon the top of other cartons and almost immediately fell down. However difficult it may sometimes be to draw the line between a pre-existing unseaworthy “condition” and the isolated, personal unforeseeable negligent act of a fellow longshoreman, see Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 500, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971); cf. Siderewicz v. Enso-Gutzeit O/Y, 453 F.2d 1094 (2d Cir. 1972), we have no such problem here. There was simply no evidence that the supporting cartons were less than normally sturdy or that the stowage was unsafe before the very heavy carton was placed on the top. The accident occurred as part of a continuous, perhaps negligent, operation which never gave rise to an unseaworthy “condition.”

Judgment affirmed.

      . One of the 1972 amendments of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 905(b), now prevents a claim of unseaworthiness by a longshoreman, but does not apply to this claim.

      . Plaintiff does not contest this aspect of the judgment,


text:
    Kermit Arthur BELGARDE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-2553.
    United States Court of Appeals, Ninth Circuit.
    Sept. 30, 1974.
    Samuel M. Haskins, San Francisco, Cal., for petitioner-appellant.
    Eugene A. LaLonde, Asst. U. S. Atty., Billings, Mont., for respondent-appellee.
    Before DUNIWAY, WRIGHT and CHOY, Circuit Judges.
   OPINION

PER CURIAM:

Belgarde appeals from an order denying his motion to vacate sentence under 28 U.S.C. § 2255. The sentence was life imprisonment on two counts of second degree murder to which he pleaded guilty after the charge was reduced from first degree murder.

Belgarde has had two previous § 2255 motions denied. In this third petition he raises two new points.

First, he seeks to lay the blame for the deaths of his two victims to others for delaying medical treatment, asserting that his trial was tainted by withheld evidence which established this fact. We agree with the district court that the point is without merit.

However, Belgarde’s second contention requires that we reverse and remand. At the time he was sentenced, Belgarde was twenty years old and therefore eligible for sentencing under the Youth Corrections Act, 18 U.S.C. § 5010. As was within his power under § 5010(d), the trial judge sentenced Belgarde as an adult but without explicitly finding that Belgarde would not benefit from the sentencing alternatives available under the Act. In Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974), the Court held such an explicit finding was required by § 5010(d).

Reversed and remanded for resentenc-ing.


text:
    WESTINGHOUSE BROADCASTING COMPANY, INCORPORATED, KYW-TV, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Directors Guild of America, Incorporated, Intervenor.
    No. 133, Dockets 74-1319, 74-1566.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 7, 1974.
    Decided Oct. 9, 1974.
    Frederick T. Shea, Kelley, Drye, Warren, Clark, Carr & Ellis, New York City (Marc L. Silverman, New York City, of counsel), for petitioner.
    Michael S. Winer, Atty., National Labor Relations Board (Allen H. Feldman, Peter G. Nash, John S. Irving, Jr., Patrick Hardin, and Elliott Moore, Washington, D. C., of counsel), for respondent.
    Alan S. Gordon, Associate Gen. Counsel, The Directors Guild of America, Inc., New York City, for intervenor Directors Guild of America.
    Before KAUFMAN, Chief Judge, and SMITH and TIMBERS, Circuit Judges.
   PER CURIAM:

Westinghouse petitions for review of a determination by the National Labor Relations Board that it committed an unfair labor practice by refusing to bargain collectively with the Directors Guild of America, the elected bargaining representative of the “producer-directors” at Westinghouse station KYW-TV in Philadelphia. The Board cross-petitions for an order of enforcement.

The only question presented for review is whether the producer-directors are excluded from the protection of the Act as “supervisors” or “managerial employees.” We find that the Board’s determination is supported by substantial evidence on the record as a whole. For reasons stated in the opinion of the Regional Director, Case No. 4-RC-10351 (July 23, 1973), it is evident that the employees in question are not “supervisors.” See Post-Newsweek Stations, 203 N.L.R.B. No. 91, 83 LRRM 1081 (1973). Nor is there any ground to question the Regional Director’s finding that the producer-directors lack the discretion and responsibility required to mark them as “managerial employees.” Bell Aerospace Co. v. NLRB, 475 F.2d 485 (2d Cir. 1973), aff’d in relevant part, 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974).

Petition for review dismissed. Cross-petition for order of enforcement granted.


text:
    UNITED STATES, Appellee, v. Mark David Albert KLOTZ, Appellant.
    No. 74-1069.
    United States Court of Appeals, Eighth Circuit.
    Oct. 1, 1974.
    Ross and Stephenson, Circuit Judges, would grant rehearing en banc.
   ORDER DENYING PETITION FOR REHEARING

PER CURIAM.

In a petition for rehearing the Government has called the court’s attention to 50 U.S.C. App. § 465(a) (1970). The section provides:

(a) Every person shall be deemed to have notice of the requirements of this title upon publication by the President of a proclamation or other public notice fixing a time for any registration under section 3 [50 U.S. C. App. § 453],

The Government asserts that by operation of this section of the Selective Service Act it was relieved of the burden of proving that defendant knowingly failed to register under 50 U.S.C. App. § 462(a). We need not decide the correctness of this interpretation, for, in point of fact, the Government tried its case and briefed the appeal' without in any way relying upon this section of the statute. It can not now, after failing to prevail on its original theories, invoke an entirely new theory in support of conviction.

Had the Government proceeded to trial in reliance on this section, the defendant may very well have made a different election in the presentation of his defense, choosing instead, for example, to take the stand. Moreover, had the Government raised this section on appeal, the defendant could have prepared a reply for the court’s consideration. As it is, the petition has all the appearances of an afterthought.

Because the Government’s resort to 50 U.S.C. App. § 465(a) is not timely, we have no occasion to consider its application to the conviction before us. See Carr v. FTC, 302 F.2d 688, 691-692 (1st Cir. 1962). Accordingly, the petition is denied.

ROSS and STEPHENSON, Circuit Judges would grant a rehearing en banc.

      . Seven proclamations, beginning with Proclamation No. 2799, July 20, 1948, 13 Fed. Reg. 4173, 62 Stat. 1531, have been issued by the President pursuant to this section.


text:
    UNITED STATES of America, Appellee, v. Daniel Roy FLEBOTTE, Appellant.
    No. 74-1016.
    United States Court of Appeals, Fourth Circuit.
    Argued Sept. 5, 1974.
    Decided Sept. 26, 1974.
    James R. Rogers, III, Raleigh, N. C., for appellant.
    Jack B. Crawley, Jr., Asst. U. S. Atty., (Thomas P. McNamara, U. S. Atty., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.
   PER CURIAM:

In this 2255, 28 U.S.C. proceeding, the appellant, who at the time of his conviction and sentencing was twenty years of age, complains of the failure of the District Court to make “explicit” findings, before sentencing under other applicable sentencing provisions, why the appellant would not have been benefited by sentencing under the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq. The District Court dismissed the petition, holding that at sentencing it had made “implicit”, though not “explicit” findings justifying failure to sentence under the Act. It is not sufficient, however, that the findings against the use of the Act in such a case as this be “implicit” ; the statute, it has been held, requires “explicit” findings on the record that no benefit would result from sentencing under the Act. The order of the District Court is accordingly reversed and remanded, with directions, that the appellant’s sentence be vacated and his sentence reconsidered. Dorszynski v. United States (1974), 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855; United States v. Ashby (4th Cir. 1974), 502 F.2d 1163 (Table).

As we said in Ashby, however, “[Although we conclude that on this record the sentence imposed was invalid, it may validly be imposed if the district court in its discretion concludes that [the appellant] would not benefit from treatment under the Act and makes that specific finding; otherwise [appellant] should be sentenced under the Act.”

Sentence vacated; remanded with directions.


text:
    Joe T. BARRERA, Plaintiff-Appellant, v. ROSCOE, SNYDER & PACIFIC RAILWAY COMPANY, Defendant-Appellee.
    No. 73-3731.
    United States Court of Appeals, Fifth Circuit.
    Nov. 8, 1974.
    Aubrey L. Roberts, Jr., R. Temple Dickson, Sweetwater, Tex., for plaintiff-appellant.
    D. L. Case, Jack Pew, Jr., Dallas, Tex., W. James Rosser, Snyder, Tex., for defendant-appellee.
    Before RIVES, GEWIN and GOLDBERG, Circuit Judges.
   PER CURIAM:

We have given careful consideration to the contentions of the parties as set forth in their well-prepared briefs and further amplified at oral argument. It is our opinion that the district court arrived at the proper conclusion and that the appellant has not presented any valid basis for reversal. Accordingly, the judgment entered for appellee by the district court is affirmed.


text:
    Application of Jaap E. NABER and Fritz M. Dautzenberg.
    Patent Appeal No. 9192.
    United States Court of Customs and Patent Appeals.
    Sept. 26, 1974.
    Leonard P. Miller and Theodore E. Bieber, Shell Development Co., Patents and Licensing Division, Houston, Tex., for appellant.
    Joseph F. Nakamura, Sol., Robert D. Edmonds, Asst. Sol., U. S. Patent Office, Washington, D. C., for Commissioner of Patents.
   PER CURIAM.

The Commissioner of Patents has petitioned for a rehearing or modification of our decision of April 25, 1974, 494 F.2d 1405.

The petition is based in part on the allegation that the court “has demonstrably applied, sua sponte, the ‘rule of doubt,’ i.e., of ‘res.olving doubt in favor of applicants for patents’ * * As a careful reading of the opinion demonstrates, no such “rule of doubt” was applied in this ease nor, as the solicitor recognizes, has any question of doubt or suggestion of applying such a “rule” been raised in this case.

Furthermore, this court has not applied the “rule of doubt” since its decision in In re Hofstetter, 362 F.2d 293, 53 CCPA 1545, (1966), cert. granted sub nom. Brenner v. Hofstetter, 386 U.S. 990, 87 S.Ct. 1304, 18 L.Ed.2d 333 (1967), vacated 389 U.S. 5, 88 S.Ct. 29, 19 L.Ed.2d 5 (1967), appeal dismissed, 55 CCPA 1493 (1967).

The “rule of doubt,” as the solicitor uses the term, is of ancient origin and did not originate in this court, which was not created until 1929. The rule appears, indeed, to go back as far as 1827 and was long applied by the predecessors of this court and by the Patent Office. See, for example, McCrady, Patent Office Practice (2d Ed., 1946), § 130, pp. 131-132. The demise of the rule began in the Court of Appeals for the District of Columbia Circuit, and it was not formally abandoned in the Patent Office until the Commissionership of Mr. Brenner. In the earliest days of this court, the rule was taken for granted and was too well known to require citation of authority. In re Burrows, 40 F.2d 1011, 17 CCPA 1254 (1930). A few years later this court said in In re Amand, 63 F.2d 117, 20 CCPA 887 (1933):

Upon the whole record, we are of opinion that this presents one of those cases in which there is a doubt which should be resolved in appellant’s favor. The rule is a familiar one and requires no elaborate citation of authorities, of which appellant has listed a large number. The familiar case of Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523, seems in point, as does the case of Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 48 S.Ct. 194, 72 L.Ed. 303.

The old and universally applied “rule of doubt” had a clear meaning that appears to have escaped the solicitor, so far as the present case is concerned. It was that if the court, after consideration of everything made available to it by the record, was left in doubt about patentability (on any ground), such ultimate doubt should be “resolved” in favor of the applicant for patent. To state it another way, the applicant was “given the benefit” of the doubt.

No such situation exists in this ease. After consideration of all the evidence, we were without doubt on the issue of obviousness. The fact that half way through our opinion, and the discussion of part of the evidence, we observed that doubt had been cast on the Patent Office position, does not mean that we resolved that doubt, without more, in favor of the applicant. Our opinion went on to consider further evidence on the obviousness issue, which evidence eliminated the doubt. A doubt resolved by examination of facts is not such a doubt as is left in the mind of the court to be resolved by any arbitrary rule.

The petition is denied.

      . A second allegation concerning the courts finding, on the basis of evidence in ¿ppellant’s specification, of an invalid motive for combining the teachings of the two cited references, we find without merit.