text:
    REYNOLDS TRADING CORP. et al., Appellant (s), v. The UNITED STATES, Appellee. T. H. GONZALES and A/C Florafil, S.A., et al., Appellant(s), v. The UNITED STATES, Appellee. UNITED SILVER & CUTLERY CO. et al., Appellant (s), v. The UNITED STATES, Appellee. The AKRON et al., Appellant(s), v. The UNITED STATES, Appellee. EDWARD HYMAN CO. et al., Appellant(s). v. The UNITED STATES, Appellee. GAMBLE IMPORT CORP. et al., Appellant(s), v. The UNITED STATES, Appellee.
    Customs Appeal Nos. 74-1 to 74-6.
    United States Court of Customs and Patent Appeals.
    May 23, 1974.

      Stein & Shostak, Los Angeles, Cal., attorneys of record, for appellants; James F. O’Hara, Los Angeles, Cal., of counsel.
    Irving Jaffe, Asst. Atty. Gen., Andrew P. Vance, Chief, Joseph I. Liebman, New York City, for the United States.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   MILLER, Judge.

This is a consolidated appeal from six separate orders of the United States Customs Court, each denying appellants’ motion for an order granting a rehearing and vacating and setting aside separate orders of dismissal entered in the above cases and also in numerous other cases listed on schedules recited as being annexed to said six separate orders. The schedules annexed to the motions are not shown, as such, in the transcript; but separate schedules of cases are attached to the six separate orders and are certified by the clerk of the Customs Court to be identical to those recited as annexed to the motions. We affirm.

The appeals were consolidated by order of this court dated November 16, 1973, upon appellants’ motion to consolidate, which included a request to limit the printed transcript of record on appeal to certain specified documents from Appeal No. 74-6 and to include in said transcript a statement that the specified documents are representative of the documents which comprise the records in the other appeals, Nos. 74-1 through 74-5. Said order granted the request but directed that the transcript also include certain specified papers and documents associated with each of the appeals, Nos. 74-1 through 74-5.

The motions for rehearing and vacating and setting aside separate orders of dismissal were filed in response to orders entered by the clerk of the Customs Court, each of which recited that the action, previously placed in the October 1970 reserve file, had not been removed therefrom by October 31, 1972, the expiration date of the two-year period for removal required by Rule 14.6 of the Customs Court, and dismissed the action for lack of prosecution.

Appellee has moved to dismiss the appeals, contending that this court does not have jurisdiction to consider them since they are from orders denying motions for rehearing and vacating and setting aside the separate orders of dismissal. It cites this court’s opinion accompanying a decision which denied appellee’s earlier motion to dismiss one of these appeals for failure to specify with sufficient particularity the names of the cases being appealed. Reynolds Trading Corp. v. United States, 486 F.2d 1077, 61 CCPA - (1973). In that case this court determined that the only action of the Customs Court on appeal was its order denying appellants’ motion for rehearing and vacating and setting aside the separate orders of dismissal. This court made it clear that the subject matter of the appeal is not the separate orders of dismissal enumerated on the schedule' annexed to the order, but the order itself. This is confirmed by appellants’ notice of appeal.

It is the generally-accepted doctrine that an appeal must be taken from the judgment of the lower court and that an appeal will not lie from an order denying a motion for a new trial, a motion for rehearing, or a motion to vacate a judgment. 6A Moore’s Federal Practice (2d Ed.) jf 59, pp. 266-267, and cases cited therein. However, the doctrine is not without exception, particularly where an abuse of discretion by the trial court may be involved. This court has indicated that the Customs Court is entrusted with the exercise of its sound discretion in ruling on a petition for rehearing and that such a ruling will not be disturbed unless it is “manifestly erroneous.” Commonwealth Oil Refining Company, Inc. v. United States, C.A.D. 1105, 480 F.2d 1352, 60 CCPA 162 (1973). Appellants argue that the Customs Court, in denying the motion for rehearing and vacating and setting aside the separate orders of dismisal, committed error that is manifest.

In considering this argument, we note the allegations of appellants’ counsel in the affidavit in support of each of said motions, particularly the allegation that while a motion for rehearing was pending before the Customs Court in a related action affecting the same cases involved here, orders of dismissal were entered by the clerk of the Customs Court. Also pertinent to our consideration is appellants’ assignment of error on the part of the Customs Court in promulgating, implementing, and applying Rule 14.6 of the court. The question, then, is whether denial of the motions for rehearing was “manifestly erroneous” under these circumstances.

Rule 14.6, which became effective October 1, 1970, provides as follows (emphasis added to show amendatory language added effective July 1,1972):

Rule H.S Reserve File
(a) Placement in Reserve File: All actions commenced in the court after the effective date of these rules (including all appeals for reappraisement and all protests received by the court after the effective date of these rules), and all actions described in Rule 14.9(c)(1) shall be placed in the reserve file for the month and year in which the action is commenced.
(b) Removal From Reserve File: An action may be removed from the reserve file: (1) upon the filing of a complaint pursuant to Rule 4.4; or (2) upon the granting of a motion for consolidation pursuant to Rule 10.3 or for suspension pursuant to Rule 14.-7(b); or (3) upon submission of the action to the court for decision upon an agreed statement of facts pursuant to Rule 8.1.
(c) Dismissal for Lack of Prosecution: An action which is not removed from the reserve file within a period of 2 years shall be dismissed for lack of prosecution, and in the absence of the filing of a motion under sub-part (e) of this rule, the clerk shall enter an order of dismissal without further direction of the court. The applicable 2-year period shall begin to run from the last day of the month in which the action is commenced, and shall end on the last day of the 24th month thereafter.
(d) Notice To Remove: At least 6 months before the expiration of the applicable 2-year period, the clerk shall send notice to the parties, in an action not previously removed from the reserve file, informing them that the action will be dismissed in accordance with paragraph (c) of this rule unless removed from the reserve file within the applicable period of time.
(e) Motion for Extension of Time: For good cause shown, the court may, upon motion, order an extension of the time, beyond the applicable 2-year period, within which an action may remain in the reserve file. Any motion for extension of time shall be filed with the clerk not later than 15 days before the expiration of the period of time. An objection or response thereto shall be filed within 10 days after service of such motion. No order of dismissal shall be entered under Rule H.6(c) until the court has acted on the motion. If the motion for extension of time is denied and less than 10 days remain, or the time has expired, for removing such actions from the reserve file pursuant to paragraph (b) of this rule, then the action shall continue to remain in the reserve file for 10 days after the court enters the order denying the extension of time.

It was pursuant to paragraph (c) that the orders of dismissal were entered.

In its opinion in the Applied Research Laboratories ease, supra, the Customs Court said that the period of two years provided by Rule 14.6 for removing cases from reserve file status to avoid automatic dismissal after October 31, 1972, “provided all counsel a reasonable and sufficient time to protect the interest of their respective clients.” It noted that on January 10, 1972, the Chief Judge of the Customs Court had transmitted a letter to all counsel having cases in the October 1970 reserve file which letter pointed out that any action not removed from this reserve file on or before October 31, 1972, would be dismissed; also that in April of 1972 the clerk of the court sent a notice to all parties having actions not previously removed from the October 1970 reserve file advising that each action would be dismissed in accordance with Rule 14.6(c) unless removed within the applicable period.

It is appellants’ position that the same cases which were the subject of the orders of dismissal involved here were also before the Customs Court in the alleged related action in which appellants had moved on October 13, 1972, for an extension of time or other alternative relief. Appellants point out that this relief was requested with respect to all cases [undesignated] “which may not have been voluntarily removed from the October, 1970 Reserve File ... on or before October 31, 1972” except certain specifically designated cases listed in two attached schedules which counsel desired to abandon; and they argue that Rule 4.12(b) and Rule 14.6(e) of the Customs Court disclose no requirement that there be a specific designation of the cases covered by their motion of October 13, 1972. Therefore, they conclude, they were denied substantive rights by the “arbitrary and unwarranted” ruling of the Customs Court that all cases (except the captioned case of Applied Research Laboratories v. United States and certain specified cases in the two attached schedules which were not designated for abandonment) were not properly the subject of their motion of October 13, 1972.

Appellee responds that the Customs Court’s ruling was correct, pointing to the requirement of specific designation of cases in Rule 4.3(a) of the Customs Court, which reads as follows:

Rule J/,.3 Form Of Pleadings

(a) Caption; Names of Parties; Designation; Pagination: Every pleading and other paper to be filed with the court shall contain a caption in large and distinct type setting forth the name of this court, UNITED STATES CUSTOMS COURT, the title of the action, the court number, and a designation showing the nature of the pleading or other paper. In the complaint the title of the action shall include the names of all the parties, but in subsequent pleadings or papers it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. The pagination of each pleading or other paper shall commence with page 1.

Appellee contends that Rule 4.3(a) applies to all written motions, including a motion for extension of time filed pursuant to Rule 14.6(e), and quotes from the Customs Court’s opinion in which rehearing was denied in the Applied Research Laboratories case, supra:

Suffice it to say at this time, the necessity of identifying to this court the specific causes of action concerning which relief is sought or requested is academic. If counsel are unable to determine and designate by name and number the causes of action in the October 1970 Reserve File for which they wish to seek an extension of time, it would appear paradoxical that this court in turn should be expected to identify such actions out of a total of approximately 177,000 cases comprising the said October 1970 Reserve File.

Appellants argue that their counsel could not have had precise knowledge on October 16, 1972, (the latest date for filing a motion for extension of time with respect to cases in the October 1970 reserve file) of what individual cases would be pending in the reserve file on October 31, 1972, because of the procedure under Rule 14.6(b)(3) for submitting cases to the Customs Court upon agreed statements of facts. Under this procedure, it appears that a case is removed from the reserve file when the defendant files with the clerk of the court a proposed decision and judgment covering the action. Appellants say that weeks or months may pass while defendant’s counsel considers a submission proposed by the plaintiff, and during this time the case remains in the reserve file. According to appellants, this was the situation with respect to “several” of the actions in the reserve file at the time the October 13, 1972, motion for extension of time was filed. Apparently the Customs Court did not consider such a situation an excuse for failing to follow its Rule 4.3(a). Also, it is apparent that if appellants had complied with Rule 4.3(a) and had designated “several” cases which (without their knowledge) were removed from the reserve file under agreed statements of facts, the motion for extension of time as to such cases would merely have been inoperative.

In view of the foregoing and after carefully considering the briefs and record before the court, we do not find error in the promulgation of Rule 14.6 of the Customs Court; nor do we find that the action of the Customs Court, applying that rule in holding that the motion of October 13, 1972, did not, in view of the requirements of Rule 4.-3(a), embrace the undesignated cases and in dismissing those cases, was arbitrary and unwarranted.

We hold that denial by the Customs Court of appellants’ motions for rehearing was not manifestly erroneous.

Appellee’s motion to dismiss is denied and the orders of the Customs Court denying appellants’ motions for rehearing and vacating and setting aside separate orders of dismissal are affirmed.

      . Appellee reargues the jurisdictional question which we decided there, but, for reasons stated in that opinion, we adhere to that decision.

      . Hill v. Pennsylvania Greyhound Lines, Inc., 174 F.2d 171 (3d Cir. 1949); Jordan v. Federal Farm Mortgage Corp., 152 F.2d 642 (8th Cir. 1945), cert. den., 328 U.S. 852, 66 S.Ct. 1339, 90 L.Ed. 1624 (1946).

      . This court has also stated that the decision of the trial court in dismissing a case for lack of prosecution will not be disturbed on appeal unless it is made to appear that there has been a gross abuse of discretion. United States v. Chas. Kurz Co., C.A.D. 941, 396 F.2d 1013, 55 CCPA 107 (1968).

      . Applied Research Laboratories v. United States, 70 Cust.Ct. -, C.R.D. 73-2, 352 F.Supp. 498 (1973), reh. den., 70 Cust.Ct. -, C.R.D. 73-7, 7 Cust.Bull. No. 13, p. 39 (1973). This case involved a motion allegedly filed by counsel on October 13, 1972, requesting the court to enter its order to (in the alternative) :
      1. Stay the clerk of the court from entering an order of dismissal of cases in the October 1970 reserve file until June 30, 1973.
      2. Transfer all of said cases to special disposition calendars at the respective ports of entry for disposition for June 30, 1973.
      3. Grant an extension of time to February 28, 1973, for cases on the October 1970 reserve file.
      This motion was denied. Following entry of some of the orders of dismissal involved in this appeal, the motion for rehearing was also denied. When an appeal was sought from the order denying the motion for rehearing, appellants’ counsel was advised that the appeal papers would not be filed because such an order was not a final judgment from which an appeal would lie under 28 U.S.C. § 1541. The merits of the action of the Customs Court denying the relief requested in the Applied Research Laboratories case are not before us in this consolidated appeal.

      . We note that some of the orders of dismissal were entered after the Customs Court had acted on the motion for rehearing.

      . Appellee’s statement that approximately 1,157 cases were involved was not challenged by appellants.

      . The ten-day period for removing actions from the reserve file, provided by Rule 14.-6(e) after entry of an order denying a motion for extension of time, appears to be what is referred to.

      . This court has made it clear that the only limitation on the Customs Court’s right to promulgate and interpret rules is that substantial rights of litigants not be unduly circumscribed. S. Stern & Co. v. United States, C.A.D. 830, 331 F.2d 310, 51 CCPA 15 (1963), cert. den., 377 U.S. 909, 84 S.Ct. 1169, 12 L.Ed.2d 179 (1964).


source: Caselaw Access Project

author: MILLER, Judge.

license: Public Domain

text:
    Wilhelm A. MAAS d. b. a. Mans Trading Co. et al., Appellants, v. The UNITED STATES, Appellee. AIR-SEA FORWARDERS, INC., et al., Appellants, v. The UNITED STATES, Appellee.
    Customs Appeal Nos. 74-11, 74-12.
    United States Court of Customs and Patent Appeals.
    May 23, 1974.

      Stein & Shostak, Los Angeles, Cal., attys. of record, for appellants. James F. O’Hara, Los Angeles, Cal., of counsel.
    Irving Jaffe, Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Joseph I. Liebman, New York City, for United States.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   MILLER, Judge.

Although separate transcripts of the record and separate briefs were filed, the above appeals were joined for oral argument and will be disposed of in a single opinion.

Each appeal is from an order of the Customs Court denying appellants’ motion for rehearing and vacating and setting aside separate orders of dismissal for lack of prosecution of the above cases and also in numerous other cases listed on a schedule recited as being annexed to said order. The schedules annexed to the motions are not shown, as such, in the transcript, but a separate schedule of cases is attached to the order and is certified by the clerk of the Customs Court to be identical to that recited as annexed to the motion. Each transcript also includes a certificate of similarity from the clerk of the Customs Court, stating that the order of dismissal in the captioned action is. typical of the other orders of dismissal entered in all actions covered by the appeal.

The essential facts and issues involved herein are identical to those in the consolidated appeals in Reynolds Trading Corp. et al. v. United States, Cust. & Pat.App., 496 F.2d 1228, decided this date, and our opinion there is controlling here.

Appellee’s argument for dismissal is rejected and the orders of the Customs Court denying appellants’ motions for rehearing and vacating and setting aside separate orders of dismissal for lack of prosecution are affirmed.

Affirmed.


author: ALMOND, Senior Judge.

text:
    Application of David DARDICK.
    Patent Appeal No. 9180.
    United States Court of Customs and Patent Appeals.
    May 23, 1974.

      Alfred B. Levine, Washington, D. C., and Donald R. Nyhagen, Woodland Hills, Cal., attorneys of record, for appellant.
    Joseph F. Nakamura, Washington, D. C., for the Commissioner of Patents; Henry W. Tarring, II, Falls Church, Va., of counsel.
    Before MARKEY, Chief Judge, RICH, LANE and MILLER, Judges, and ALMOND, Senior Judge.
   ALMOND, Senior Judge.

This is an appeal from the decision of the Patent Office Board of Appeals affirming the examiner’s rejection of claims 1-5 of appellant’s application entitled “Salvo Ammunition For Multiple Bore Open Chamber Gun.” We reverse.

The Invention

The claims on appeal are directed to ammunition for a “multiple bore open chamber gun.” With reference to the figures set forth below, appellant’s specification contains the following description of the preferred embodiment of the claimed invention:

Reference is made first to FIGS. 6 through 8 illustrating a salvo-type, multiple projectile open chamber ammunition round 10, according to the invention. The illustrated ammunition is cased ammunition and comprises an outer yieldable, noncombustible cartridge ease 12 which is typically constructed of a suitable noncombustible plastic. * * * Cartridge case 12 has the preferred, generally triangular round shape in transverse cross-section which characterizes open chamber ammunition and includes front and rear transverse end walls 14 and 16, respectively, and longitudinal side walls 18. Contained within the cartridge case 12 are a plurality of projectiles 20 and a propellant charge 22.

The projectiles 20 are elongated longitudinally of the round, and, in this instance, have conventional bullet shapes. In the particular salvo ammunition illustrated, the projectiles are three in number and are uniformly spaced about the longitudinal axis of the round in such a way that the projectiles are disposed in radial planes, respectively, containing the axis and the three longitudinal apex edges of the cartridge ease 12. Extending through the front end wall 14 of the cartridge case, in coaxial alignment with the projectiles, are bores 24. Sealed to the walls of these bores are obturating sleeves 26 frictionally receiving the projectiles. The propellant charge 22 fills the remaining interior volume of the cartridge case 12 in such manner that the propellant encapsulates the projectiles and their obturating sleeves. Mounted in the rear end wall 16 of the cartridge case 12 is a primer 28.

An open chamber gun, as described in appellant’s specification, has a rotating cylinder with cut-out triangular sections running its length. The cartridge is laterally inserted into one of these sections and rotated into firing position within the breech.

The “multiple bore open chamber gun” in which this ammunition is employed has a number of bores (barrels) equal to the number of projectiles in the round, in this case three. When a round is fired in the gun, the projectiles are discharged simultaneously as a salvo, thereby increasing the likelihood that the target will be struck.

Claims 1 and 4 are representative of those on appeal:

1. Salvo-type ammunition to be fired in a multiple bore open chamber gun of the character described, comprising :
an ammunition round of generally triangular round shape in transverse cross-section having a central longitudinal axis and containing a rear propellant charge and a plurality of forward positionally fixed mutually axially coextensive elongate projectiles having individual longitudinal axes substantially parallel to and uniformly spaced from said central axis of said round, and said projectiles being angularly spaced in a pre-determined array about said central axis.
4. Ammunition according to Claim 1, wherein:
said ammunition round is an open chamber ammunition round including an outer yieldable noncombustible cartridge case of generally triangular round shape in transverse cross-section and having a front end wall;
said wall contains bores coaxially aligned with said projectiles, respectively ; and
obturator sleeves sealed to the walls of said latter bores and receiving said projectiles, respectively.
The Rejection
The references relied upon were:
Dardick 2,865,126 December 23, 1954
Hawthorne 3,437,039 April 8, 1969
(filed March 7, 1962)

Hawthorne describes a triangular shaped round for open chamber guns having three projectiles. Dardick describes a triangular round for open chamber guns having a single projectile which is surrounded by an obturating sleeve.

Claims 1-3 and 5 were rejected under 35 U.S.C. § 102 as anticipated by Hawthorne. Claim 4 was rejected under 35 U.S.C. § 103 as unpatentable over Hawthorne in view of Dardick. In the examiner’s view, it would have been obvious to one of ordinary skill in the art to use the obturating sleeve of Dardick in the round described by Hawthorne.

In the proceedings below, appellant did not challenge the examiner’s conclusion based upon his interpretation of the prior art. However, appellant did submit affidavits and corroborating evidence under the provisions of Rule 131 in order to have Hawthorne removed as a reference. The evidence submitted under Rule 131 consisted of two affidavits by appellant, a corroborating affidavit by an employee of the Dardick Corporation (Charles Scheidler), a document purporting to be a part of a proposal to be submitted to a licensee, hand-written report of firing tests allegedly carried out using cartridges like that described in the specification, and three photographs of a cartridge case like that described in the specification.

The examiner did not consider the affidavits and other evidence to be an adequate showing under Rule 131 for essentially two reasons. In his view, the evidence submitted neither adequately described the cartridge in question nor demonstrated that whatever cartridge was tested was actually reduced to practice before the filing date of Hawthorne. He summarized his position as follows:

In summary, all the exhibits submitted do not adequately describe the cartridge tested prior to the effective date of Hawthorne. The photographs submitted are clearly inadequate. The affidavits are not in sufficient detail so as to determine the cartridge developed and claimed reduced to practice prior to March 7,1962.
The tests submitted as exhibits of a reduction to practice are certainly inadequate for that purpose. The mere fact that bullets were ejected from a gun barrel is certainly a “far cry” from a reduction to practice in the ammunition art. In the explosive ammunition art safety through reliability, consistency and accuracy must be considered for a true reduction to practice.

For its part, the board noted, without comment, the examiner’s conclusions regarding the adequacy of the description of the cartridge in the affidavits and exhibits. However, after observing that the bullets tumbled in one of the firing tests reported, the board concluded that “ * * * to have a reduction to practice in this art the bullets should not tumble.”

Opinion

Appellant, with the solicitor’s concurrence, states the issue to be resolved on this appeal as follows:

The sole issue in this appeal is the sufficiency of the affidavits and exhibits submitted under Rule 131 to eliminate a reference patent of Hawthorne.

However, for us to address this issue requires that we consider two subsidiary questions. The first is that directly addressed by the board, i. e., whether the evidence as embodied in the firing tests is sufficient to show that whatever cartridge was tested was reduced to practice before the filing date of Hawthorne. The second is whether the affidavits and exhibits submitted under Rule 131 present an adequate description of the invention for the purpose of having Hawthorne removed as a reference.

Although the board did not expressly approve the examiner’s decision regarding the adequacy of the description of the invention, neither did it expressly overrule the examiner on this ground for rejecting the showing under Rule 131. Accordingly, we must regard it as having been affirmed. See Patent Office Rule 196(a); In re Halliwell, 358 F.2d 1008, 53 CCPA 1112 (1966), and In re Rubinfield, 270 F.2d 391, 47 CCPA 701 (1959). We turn now to a consideration of these questions in the order presented.

The firing tests are adequate to establish that the cartridge tested was reduced to practice.

In response to the first office action, appellant submitted the report of the firing tests as an exhibit in support of his first affidavit under Rule 131. In the second office action received by him, in which the rejection was made final, the examiner did not criticize this report except to say that it was given no weight because of the inadequacy of the description of the cartridge. It was in response to this that appellant filed his second affidavit with Scheidler’s corroborating affidavit. The affidavit was entered but deemed inadequate, without comment, to overcome the rejection. It was not until he prepared his answer to appellant’s brief on appeal to the board that the examiner raised the question of the adequacy of the firing test as proof of a reduction to practice. He observed:

The success of the test results is not clear from the report. The only success from the report appears to be that the bullets were ejected and hit a target. It appears that the bullets tumbled (test # 1), that the sleeve imbedded in the barrel (test # 3), that something broke in test # 5, that only one bullet was used in test # 9 and that no sleeve was used in test # 10.

As we have already indicated, the board focused on the fact that in test #1 all the bullets tumbled. Appellant, in a request for reconsideration adressed to the board after its decision adverse to him and in his brief on this appeal, argued that the problems alluded to by the examiner are characteristics of the gun rather than the ammunition and, furthermore, that these problems were all corrected in subsequent tests. The record supports his arguments.

With respect to the observation about test # 3 wherein a sleeve embedded itself in the barrel, appellant pointed out that the barrel was modified in test # 4 and there was no repeat of this occurrence.

' The “something broke” in test # 5 was a weld holding the three barrels together. We think this an obvious defect in the gun rather than in the cartridge itself. Most of the tests employed different barrels as the length and bore size were changed, and in some cases rifling provided, in different tests. In no test other than test # 5 did a weld failure occur.

The test referred to by the board appears to be test # 1. It is true that all the bullets did tumble. However, in support of his position, appellant pointed out that the barrels used in this test were not rifled and in any gun lacking a rifled bore, no stabilizing spin is imparted to a bullet and tumbling occurs. He has directed our attention to test # 8 as showing that by using a rifled bore the tumbling problem can be corrected.

For his part, the solicitor asserts that even this test is inadequate since it appears that one of the three bullets tumbled anyway. However, the fact that two of the three bullets did not tumble when a rifled bore was used tends to strongly support appellant’s argument that the occurrence of tumbling is a result of characteristics of the bore rather than the cartridge.

Going beyond this, we do not believe that the occurrence of tumbling negates a reduction to practice in any event. The court takes judicial notice of the fact that guns were satisfactorily employed in war and sport long before the rifle was invented. To prove a reduction to practice, all that must be shown is that the invention is suitable for its intended purpose. See Voisinet v. Coglianese, 455 F.2d 1064, 59 CCPA 958 (1972) and Knowles v. Tibbetts, 347 F.2d 591, 52 CCPA 1800 (1965). There is no requirement for a reduction to practice that the invention, when tested, be in a commercially satisfactory stage of development. See In re Anthony, 414 F.2d 1383, 56 CCPA 1443 (1969). In this case the tests performed show that the cartridge is suitable for its intended purpose since in every test when the cartridge was fired all the bullets left the barrels and struck paper targets. Accordingly, we hold that the firing tests are adequate to show that the cartridge tested was reduced to practice.

The Rule 131 affidavit and supporting evidence contain an adequate description of the invention.

In view of our conclusion that the firing tests show that whatever round was tested was reduced to practice, we believe that the affidavit made by Dardick under Rule 131 and the supporting evidence, including the corroborating affidavit of Scheidler, are sufficient to have Hawthorne removed as a reference.

In his affidavit, Scheidler stated that he was present at the firing tests relied upon by Dardick to prove his alleged reduction to practice. In the affidavit, Scheidler described the cartridge used in those tests as follows:

THAT each test round of open chamber ammunition which was fired in the firing tests of Exhibit A consisted of a plastic cartridge case of generally triangular cross-section containing three separate projectile bores located within the three apex portions of the ease in laterally spaced parallel relation to the central axis of the ease and opening forwardly through the front end of the case and rearwardly to a single coaxial powder chamber in the rear end of the case containing a powder charge, three separate projectiles (bullets) fitted within individual sealing sleeves fixed in the three projectile bores, and a primer at the rear end of the ease for igniting the powder charge.
THAT Exhibits Bl, B2, and B3 are photographs of one of the open chamber cartridge cases which was made at the Dardick Corporation for use in the firing tests described in Exhibit A;

Exhibit A referred to in the affidavit is a handwritten test report. The three photographs are in sufficient detail to show that the cartridge case has a cross-section in the shape of an equilateral triangle with one end having three openings (bores for the bullets) whereas the other end has a single opening.

Generally speaking, Dardick’s own affidavit has the same description of the cartridge as that appearing in Scheidler’s affidavit. The examiner’s only criticism of these affidavits seems to be that they describe a cartridge unlike that described in the application, for he stated:

It appears that the appellant is attempting to swear back of the Hawthorne reference by a reduction to practice of an embodiment of an invention not disclosed in the application.

The examiner’s reason for this conclusion is that Dardick’s and Scheidler’s affidavits, in nearly identical language, refer to the obturating sleeves as being “fixed within the three projectile bores.” In his view, the language of claim 4 means “that the sleeve is sealed to the forward wall of the cartridge.”

Putting aside for the moment the question of whether the examiner was correct in his assertions regarding the obturating sleeves, we fail to see the relevance of this objection to the affidavits insofar as claims 1-3 and'5 are concerned. It will be recalled that these claims read upon a cartridge whether or not it employs obturating sleeves. Accordingly, these claims read upon the structure described in the affidavits even if that structure is not the one actually described in the application. More importantly, since the firing tests prove that whatever cartridge was described by Scheidler was reduced to practice, the affidavits establish that appellant was in possession of an invention within the scope of claims 1-3 and 5 prior to the effective date of Hawthorne as a reference.

We know of no legal requirement that the embodiment of an invention relied upon as a reduction to practice must be identical to that described in the application for a patent. A reduction to practice may very well be followed by improvements before the application for patent is filed. Furthermore, it is significant that 35 U.S.C. § 112 merely requires that the “best mode” rather than every mode “contemplated by the inventor” shall be set forth in the application.

We also believe that the examiner is in error insofar as his objections to the affidavits relate to the description of the obturating sleeves.' It is our view that he must have reached his conclusion because of a misapprehension of what claim 4 requires.

From his remarks, it is clear that the examiner felt that the obturating sleeve must be sealed to the front end walls of the cartridge. However, it seems clear to us that the claim requires that the sleeve must be sealed to the walls of the bores themselves rather than to the end wall of the cartridge.

It is true that the affidavits state that the sleeves were “fixed in the three projectile bores” rather then “sealed to the walls” as stated in claim 4. However, these expressions do not differ materially in scope. Assuming arguendo that the term “fixed” in the affidavits is somewhat broader than the term “sealed” in the claim, certainly one way to fix the sleeves in the bores is to seal them to the walls. For his part, appellant points out that in the description of the cartridge in Hawthorne there is no reference to sleeves at all, much less to their being “fixed” or “sealed,” and that his and Seheidler’s affidavits, regardless of how they describe the sleeves, show that he had possession of at least as much of the invention (as defined by claim 4) as is shown by the reference. He argues, without citation of authority, that to have a reference removed “[b]y established law, Applicant is required to show only so much as is shown by the reference.”

Appellant’s view is too broadly stated to be generally applicable. See In re Tanczyn, 347 F.2d 830, 52 CCPA 1630, (1965). However, this case is factually so similar to that of In re Stryker, 435 F.2d 1340, 58 CCPA 797 (1971) that our decision there compels us to agree with appellant in this instance.

We have already pointed out that since the firing tests show that the cartridge tested was reduced to practice, the showing under Rule 131 is adequate to have Hawthorne removed as a reference against claims 1-3 and 5 which literally read on subject matter disclosed therein. The only difference between the subject matter disclosed in Hawthorne and that defined by claim 4 is the obturator sleeve. That difference is so small, as shown by the Dardick reference which shows that obturator sleeves were known to the art prior to Hawthorne, as to render the claim obvious over Hawthorne. As this court pointed out in Stryker, to hold that Hawthorne is not removed as a reference against claim 4 would lead to an anomalous result, i. e., the showing under Rule 131 would be adequate to have Hawthorne removed as a reference against claims 1-3 and 5 but insufficient to remove the same reference against a claim narrowed by a limitation which would have been obvious to one skilled in the art when Hawthorne’s disclosure became part of the prior art.

It is, perhaps, pertinent to point out that the rejection in this case involved two references, where as in Stryker only one reference was involved. However, under the facts of this case, we consider that to be an immaterial difference between the two cases, since the Dardick reference merely showed what one skilled in the art would be expected to know at a date prior to the effective date of Hawthorne as a reference.

For the foregoing reasons, the decision of the board affirming the rejection of claims 1-5 is reversed.

Reversed.

      . Serial No. 787,754 filed December 30,1968.

      . One of appellant’s own patents and a statutory bar under 35 U.S.C. § 102(b).

      . According to the Dardick patent, the function of the obturating sleeve is to seal the gap in the breech between the opening to the barrel and the cartridge case to prevent the escape of the propellant gases, generated when the round is fired, from the barrel end of the breech. It accomplishes this by expanding to fill the gap under the influence of the heat and pressure generated by the firing of the round.

      . The second of his two affidavits.


author: VAN OOSTERHOUT, Senior Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Vernon Kenneth RUCKER, Appellant.
    No. 74-1082.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 15, 1974.
    Decided June 4, 1974.
    R. Thomas Day, Kansas City, Mo., for appellant.
    Anthony P. Nugent, Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, Senior District Judge.

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

   VAN OOSTERHOUT, Senior Circuit Judge.

Defendant Rucker has taken a timely appeal from his conviction by a jury on an indictment charging alleged distribution of narcotics in violation of 21 U.S. C. § 841(a)(1) and the resulting sentence. Defendant on this appeal does not attack the sufficiency of the evidence to support his conviction. Our examination of the record satisfies us that the conviction is supported by substantial evidence.

The errors relied upon for reversal are:

I. Refusal of the trial court to dismiss the indictment upon the ground that the delay in returning the indictment and arresting the defendant after the indictment deprived defendant of his Fifth Amendment right to due process and his Sixth Amendment right to a speedy trial.

II. Denial of defendant’s motion to prohibit the Government from showing defendant’s prior convictions for impeachment purposes in event defendant took the witness stand.

III. Refusal to submit to the jury a requested lesser-included offense instruction.

We reject such contentions and affirm for the reasons hereinafter stated.

I.

A brief chronology of the evidence is necessary background for the discussion of the failure to dismiss for want of speedy trial issue. An indictment was returned on February 8, 1973, charging defendant distributed narcotics on August 8, 1972, in violation of 21 U.S.C. § 841(a)(1). Defendant was arrested on June 4, 1973. On June 11, 1973, superseding indictment charging the same offense was filed for the purpose of charging defendant under his true name rather than under the erroneous name set out in the original indictment. An omnibus pretrial hearing was held before the magistrate on June 12. Defendant was arraigned and entered a plea of not guilty on July 12. Defendant’s trial commenced on October 1, 1973.

Defendant urges that the combination of the six-month indictment delay and the four-month interval between the indictment and arrest have deprived defendant of the Fifth Amendment due process rights and his Sixth Amendment right to a speedy trial.

With respect to the pre-indictment delay, United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971), holds that the Sixth Amendment trial provision “is activated only when a criminal prosecution has begun. . ” The Supreme Court recognized that if pretrial delay had caused substantial prejudice to any accused’s right to a fair trial and the delay was an intentional device by the Government to gain a tactical advantage over an accused, a due process violation could be established. The Court held under the facts before it no prejudice was alleged or proved and that no showing was made that the Government intentionally delayed the indictment to gain a tactical advantage. See also United States v. Andreas, 458 F.2d 491, 492 (8th Cir. 1972).

Defendant’s claims of prejudice in the present case, which are conclusory and highly speculative, are not established. There is no evidence that the Government delayed the indictment to gain a tactical advantage. It is defendant’s contention that if the trial had been held at an earlier date the doorman at the Boys’ Club would have been able to identify him and testify as to his activities at the Club. After the defendant had arranged to sell the narcotics to the Government agent, he was driven to the Boys’ Club at defendant’s direction. Defendant and a Government informer went into the Boys’ Club and upon their return, defendant delivered the narcotics to the agent and received payment therefor. The doorman had no previous acquaintance with the defendant and it is unlikely that at an earlier date he would have been able to recognize the defendant and account for his activities at the Club. In any event, what happened at the Club has no bearing on the issue of defendant’s guilt as the Government’s case is predicated upon the agent’s testimony that the defendant delivered the narcotics to the Government agent and received payment therefor.

With respect to the four-month delay between the indictment and the arrest, it would appear that the failure to make an early arrest was due to oversight and inadvertence. There is nothing in the record to indicate that the delay was for the purpose of obtaining some advantage over the defendant or that any advantage was gained by the Government by the delay. In United States v. Weber, 479 F.2d 331, 332 (8th Cir. 1973), we followed the balancing test set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 and stated:

In Barker v. Wingo, 407 U.S. 514, 525, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1971), the Supreme Court, in an exhaustive review of the speedy trial issue, adopted a balancing test which requires consideration of four factors: (1) the length of delay, (2) the reason for delay, (3) defendant’s assertion of his right to a speedy trial, (4) the prejudice to the defendant.

In our present case, defendant was promptly released on bail. When the balance test above set out is applied to the facts in this case, we are satisfied that the court committed no error in determining that the delay in trial was not unreasonable and that no substantial prejudice was caused defendant by reason of the delay. The total time elapsed between the original indictment and the trial was less than eight months and the time between the defendant’s arrest and trial was less than four months.

II.

The trial court did not err or abuse its discretion in denying defendant’s pretrial motion for an order requiring the Government to avoid using defendant’s prior convictions for impeachment purposes in event that defendant was produced as a witness. Defendant had previous convictions in 1953 and 1956 for narcotic offenses. As a result of the ruling, defendant after his legal rights were fully explained to him, refused to become a witness.

This court has consistently held that a defendant who offers himself as a witness may be cross-examined with respect to prior convictions. United States v. Poitra, 486 F.2d 46, 47 (8th Cir. 1973); United States v. Merrill, 484 F.2d 168, 171 (8th Cir. 1973); United States v. Scarpellino, 431 F.2d 475, 478 (8th Cir. 1970).

III.

Lastly, defendant contends the court erred in failing to submit his requested instruction submitting the lesser-included offense of possession of a controlled substance in violation of 21 U.S.C. § 844(a). Defendant relies upon United States v. Mondaine, 481 F.2d 617 (8th Cir. 1973). In Mondaine, the requested lesser-included offense instruction was given at defendant’s request. The defendant was convicted of the included offense. We affirmed the conviction. The issue of the propriety of giving the lesser-included offense instruction was not raised or considered by the court.

In Sansone v. United States, 380 U.S. 343, 350, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965), the court holds:

A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense. Berra v. United States, supra [351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013]; Sparf v. United States, supra [156 U.S. 51] at 63-64 [15 S.Ct. 273, 39 L.Ed. 343].

See United States v. Harary, 457 F.2d 471 (2d Cir. 1972); United States v. Sinclair, 144 U.S.App.D.C. 13, 444 F.2d 888, 891 (1971).

In our present case, the Government agent testified he negotiated with the defendant for the purchase of narcotics, that he received the same from the defendant and that he paid the defendant therefor. No evidence was offered to dispute such testimony. Under the evidence in this case, no rational basis exists for acquitting the defendant of the offense charged and convicting him of the lesser offense of possession. As was the situation in Sansone, there are no disputed facts with respect to any element required for conviction of the greater offense charged but not required for the conviction of the lesser offense.

The judgment is affirmed.


author: PER CURIAM.

text:
    Robert J. STRITTMATTER, Plaintiff-Appellant, v. The GOODYEAR TIRE & RUBBER COMPANY, Defendant-Appellee.
    No. 73-2219.

    United States Court of Appeals, Sixth Circuit.
    Argued April 17, 1974.
    Decided May 29, 1974.
    Alan I. Goodman, Cleveland, Ohio, on brief, for plaintiff-appellant.
    Daniel W. Hammer, Joseph S. Ruggie, Jr., T. Merritt Bumpass, Jr., Thompson, Hiñe & Flory, Cleveland, Ohio, on brief, for defendant-appellee.
    Before PHILLIPS, Chief Judge, and WEICK and EDWARDS, Circuit Judges.
   PER CURIAM.

The District Court, relying on our decision in Dewey v. Reynolds Metals Co., 429 F.2d 324 (6th Cir. 1970), affirmed by an equally divided Court, 402 U.S. 689, 91 S.Ct. 2186, 29 L.Ed.2d 267 (1971), granted Goodyear’s motion for summary judgment and dismissed the complaint on the sole ground that appellant Strittmatter was bound by the prior arbitral decision and had no right to sue under Title VII of the Civil Rights Act of 1964.

During the pendency of Strittmatter’s appeal to this Court the Supreme Court decided Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), and held:

An employee’s statutory right to trial de novo under Title VII [of the Civil Rights Act of 1964 is not] foreclosed by prior submission of his claim to final arbitration under the nondiscrimination clause of a collective-bargaining agreement.

As to the weight to be given to the arbitral decision Mr. Justice Powell, who wrote the opinion for the Court, stated:

We think, therefore, that the federal policy favoring arbitration of labor disputes and the federal policy against discriminatory employment practices can best be accommodated by permitting an employee to pursue fully both his remedy under the grievance-arbitration clause of a collective-bargaining agreement and his cause of action under Title VII. The federal court should consider the employee’s claim de novo. The arbitral decision may be admitted as evidence and accorded such weight as the court deems appropriate.
The judgment of the Court of Appeals is reversed. (Footnote omitted.) (94 S.Ct. at 1025.)

The District Court in Alexander had relied on our decision in Dewey, and the Court of Appeals for the Tenth Circuit affirmed in a per curiam opinion. 466 F.2d 1209 (10th Cir. 1972).

Alexander requires us to reverse the judgment of the District Court and to remand for a trial de novo, in which the arbitral award may be admitted in evidence and accorded such weight as the Court deems appropriate.

In addition to Goodyear’s defense of arbitration, there were other issues in the case which it will be necessary for the District Court to determine upon the remand. These same issues were decided in part in Dewey. The Supreme Court in Alexander did not decide the additional issues involved in Dewey, because there only the issue of arbitration was involved.

Some of the additional issues were discussed in Reid v. Memphis Publishing Co., 468 F.2d 846 (6th Cir. 1972), where no arbitration factor was present. Dewey was distinguished on page 349.

The judgment of the District Court is reversed and the cause is remanded for trial.

      . See article in 69 Mich.Law Rev. 599 (1970), in which Dewey is extensively discussed. On the first page of the article, in italics, appears a quotation from an opinion written by Circuit Judge Learned Hand in Otten v. B & O R.R., 205 F.2d 58, 61 (2d Cir. 1953).


author: NOLAND, District Judge.

text:
    Alfredo GUZMAN-FLORES et al., Petitioners, v. UNITED STATES IMMIGRATION & NATURALIZATION SERVICE, Respondent. Pedro CASTELLANOS-CASTILLO, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
    No. 73-1313, 73-1525.
    United States Court of Appeals, Seventh Circuit.
    Heard April 9, 1974.
    Decided May 28, 1974.

      Ralph M. Schelly, Chicago, 111., for petitioners.
    Mary Jo Grotenrath, U. S. Dept, of Justice, Washington, D.C., James R. Thompson, U. S. Atty., Chicago, 111., for respondent.
    Before SWYGERT, Chief Judge, SPRECHER, Circuit Judge and NO-LAND, District Judge

       District Judge James E. Noland of the Southern District of Indiana is sitting by designation.

   NOLAND, District Judge.

These cases have been consolidated for argument and decision by the Court as they raise the same legal issue on appeal and are very similar on the facts. Petitioners are all natives and citizens of Mexico and seek review of a final order of deportation issued in Cause Number 73-1313 on December 27, 1972 and in Cause Number 73-1525 on February 23, 1973, against them by the Immigration and Naturalization Service. Petitioners challenge the orders by challenging the validity of the deportation proceedings on the ground that their arrests by local police without probable cause were unconstitutional and rendered all subsequent proceedings invalid as being the “fruit of the poisoned tree.”

In Number 73-1313 the five petitioners admittedly entered the United States without inspection by entering at various points in Texas during 1972. At the deportation hearing counsel for the petitioners moved to terminate the proceedings on the grounds that the arrest of petitioners was illegal and thus tainted the deportation proceedings. Counsel made an offer to prove after the Special Inquiry Officer overruled the motions to terminate.

Petitioners allege that on July 8, 1972, they were riding in an automobile on the Stevenson Expressway when, without probable cause other than suspicion of their alienage, police officers of the Summit Police Department stopped them, questioned them regarding their alienage, and then took them into custody. No charges were filed by the local authorities but petitioners were held overnight and then turned over to the immigration service the next day.

The Special Inquiry Officer rejected petitioners’ contentions and denied the motions for termination. Thereafter, all five petitioners admitted their illegal presence in this country and admitted deportability. Each requested the privilege of voluntary departure, which was granted. The Special Inquiry Officer found the petitioners deportable for violating 8 U.S.C. § 1251(a)(2), entering the United States without inspection. The findings were appealed to the Board of Immigration Appeals which sustained the decision by the Special Inquiry Officer both on the issue of deportability and on the denial of the motions to terminate.

In Number 73-1525 the petitioner admittedly is an alien who entered the United States to work and who does not possess an immigrant visa or other entry documents which permit him to work in this country. Petitioner entered the United States in 1971 with a local border crossing card which he later mailed back to his home in Mexico. At the deportation hearing this petitioner also moved to terminate the proceedings on the ground that his arrest was unconstitutional and thus tainted the deportation proceedings. Counsel also made an offer to prove after the Special Inquiry-Officer overruled the motion.

This petitioner alleges that he was walking down the street near his home in Palatine, Illinois when he was stopped by the local police. He alleges that there was no probable cause for his arrest other than suspected alienage. He was detained overnight by the local authorities without any charges being lodged against him, and was turned over to the immigration service the next morning.

After the Special Inquiry Officer denied the motion to terminate, petitioner admitted deportability and requested the privilege of voluntary departure, which was granted. The Special Inquiry Officer found petitioner deportable under 8 U.S.C. § 1251(a)(1) as an immigrant who is excludable. The findings were appealed to the Board of Immigration Appeals which sustained the decision both on the issue of deportability and on the denial of the motion to terminate.

In both cases the Special Inquiry Officer ruled that he had no authority to inquire into the legality of an arrest by local police officers. This ruling was affirmed by the Board of Immigration Appeals, which Board also found that there was “clear, convincing and unequivocal” evidence to support the deportation order. This appeal followed with jurisdiction founded on 8 U.S.C. § 1105a.

Petitioners do not question that they are illegal aliens who may be deported from the United States. Their sole contention in this appeal is that the deportation proceedings should have been terminated because they were arrested by local police without probable cause in violation of the Fifth and Fourteenth Amendments. This they claim tainted the subsequent proceedings making the order of deportation illegal as well. In essence, petitioners seek the application of an exclusionary rule to a false arrest case so as to suppress their physical presence before the immigration authorities and prevent their deportation.

The Fourth Amendment exclusionary rule was recently reviewed by the Supreme Court in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). In Calandra the Court points out that the rule is a judicially-created remedy designed to safeguard Fourth Amendment guarantees by utilizing the technique of suppression of evidence to achieve deterrence and not a rule to safeguard personal constitutional freedoms. Id. at 620. Further, the need for the rule is “strongest where the Government’s unlawful conduct would result in imposition of a criminal sanction on the victim of the search.” Id.

We note initially that the record in this case does not disclose any “evidence” used against these petitioners to establish their deportability which was obtained as a result of any search or their arrest. Instead, petitioners argue that their physical presence is the evidence to be suppressed as that presence was obtained illegally. This, they assert, is the “fruit of the poisoned tree” which must be suppressed to protect their constitutional rights.

Historically the remedy for an unconstitutional arrest has been a civil action for false arrest and false imprisonment. Luker v. Nelson, 341 F.Supp. 111 (N.D. Ill.1972). No case has been pointed out by petitioner which has applied an exclusionary rule to require the termination of a court proceedings because of an illegal arrest, and, in fact, such has not been held by the courts to be necessary. As we pointed out in Vlissidis v. Anadell, 262 F.2d 398 (7th Cir. 1959):

“As to the claimed unlawful arrest, it has long been settled that an unlawful arrest has no effect on the power of a tribunal to try the person so arrested. [Citation omitted]. Evidence obtained as a result of an unlawful arrest may be suppressed, but we know of no authority for holding a deportation proceedings such as we are here considering to thus become null and void.” Id. at 400.

This position was again reiterated in Huerta-Cabrera v. Immigration & Naturalization Service, 466 F.2d 759 (7th Cir. 1972) where we said:

“Even if the arrest were illegal, the mere fact that the authorities got the ‘body’ of Huerta-Cabrera illegally does not make the proceeding prosecuting him or deporting him the fruit of the poisoned tree. This would not be a case of the use of evidence seized during the course of an illegal arrest.” Id. at 761 n.5.

This general principle, that the illegality of an arrest does not destroy a later valid proceeding, has long been recognized by the Supreme Court and is still a valid rule of law. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886). Several other Circuits have reiterated this principle recently in the following cases: Taylor v. Alabama, 465 F.2d 376 (5th Cir. 1972); United States v. Woodring, 446 F.2d 733 (10th Cir. 1971); United States v. Morris, 445 F.2d 1233 (8th Cir. 1971); Autry v. Wiley, 440 F.2d 799 (1st Cir. 1971); High Pine v. Montana, 439 F.2d 1093 (9th Cir. 1971); LaFranca v. Immigration & Naturalization Service, 413 F.2d 686 (2d Cir. 1969).

Clearly petitioners herein have admitted their deportability at the deportation proceedings. The Service did not rely on any evidence seized at the time of their arrests by local authorities to establish their deportability. Thus, even if those arrests were illegal, this does not invalidate the subsequent deportation proceedings. LaFranca v. Immigration & Naturalization Service, 413 F.2d 686 (2d Cir. 1969); Shing Hang Tsui v. Immigration & Naturalization Service, 389 F.2d 994 (7th Cir. 1968); Miller v. Quatsoe, 332 F.Supp. 1269 (E. D.Wis.1971). There is clear, unequivocal and convincing evidence in the record to support the order of deportation.

While petitioners urge this Court to apply the Fourth Amendment in this case, we cannot accept this contention which would extend the exclusionary j rule to the Fifth Amendment context of vV arrest absent an unlawful search. Therefore, for the reasons set out herein, the deportation order is affirmed.


author: SNEED, Circuit Judge:

text:
    Mary Stewart POWELL, Appellant, v. William K. ROGERS, Deputy Commissioner, United States Employees’ Compensation Commission, 13th Compensation District, Appellee, STATE COMPENSATION INSURANCE FUND, Real Party in Interest-Appellee.
    No. 72-2884.
    United States Court of Appeals, Ninth Circuit.
    May 16, 1974.

      John P. Riordan (argued), Darwin & Riordan, San Francisco, Cal., for appellant.
    Judith S. Feigin (argued), John F. Meadows, Atty. in Charge, Robert J. Finan, Admiralty & Shipping Section, U. S. Dept, of Justice, James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for appellee.
    Robert A. Laporta (argued), San Francisco, Cal., for real party in interest —State Compensation.
    Before ELY and SNEED, Circuit Judges, and WILLIAMS, District Judge.

       Honorable David W. Williams, United States District Judge, Central District of California, sitting by designation.

   OPINION

SNEED, Circuit Judge:

The appellant, Ms. Mary Stewart Powell, brought this action pursuant to Section 21 of the Longshoreman’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., before the Compensation Commission for the 13th Compensation District, which denied the appellant’s claim for death benefits under the above Act as the “surviving wife” or “widow” of Mr. Amadee B. Powell. In the district court the Deputy Commissioner and the State Compensation Insurance Fund, the real party in interest, moved for summary judgment dismissing the appellant’s action. A motion for summary judgment setting aside the Deputy Commissioner’s order and finding that the appellant was entitled to judgment on her claim as a matter of law was also filed. The appellant’s motion was denied and that of the Deputy Commissioner and the State Insurance Board was granted. This appeal resulted. Our jurisdiction rests on 28 U.S.C. § 1291, while that of the district court flows from 33 U.S.C. § 901.

In large part because of the appellant’s commendable candor, there is no dispute about the facts. She and the decedent, Mr. Amadee B. Powell, lived together from 1955 until his death in 1969 but did not undergo a formal or ceremo- * nial marriage. Three children were born of this union, and the entire household was supported by the decedent. During most of this period the decedent was lawfully married to another, a marriage of which the appellant was aware. This marriage was dissolved by divorce in 1965, but there occurred no ceremonial marriage by the Powells thereafter. In the words of the appellant, her marriage was legal “[I]n the sight of God, yes; but in the sight of man, no.”

The Deputy Commissioner found that the Powells lived together as man and wife in the States of California and Nevada, that death benefits should be paid on behalf of the three minor children to the appellant, their mother and natural guardian, but that no death benefits were payable to the appellant as a “surviving wife” or “widow”. 33 U.S.C. §§ 902(16) and § 909.

There is no escape from the conclusion that under these facts appellant was neither the lawful nor putative wife of the decedent under California or Nevada law. Lawful marriage requires the “issuance of a license and solemnization.” Section 4100, California ‘Civil Code. To be a putative spouse one must believe in good faith that he is a party to a valid marriage. Vallera v. Vallera, 21 Cal.2d 681, 134 P.2d 761 (1943); Miller v. Johnson, 214 Cal.App.2d 123, 29 Cal.Rptr. 251 (1963); Union Bank & Trust Co. v. Gordon, 116 Cal.App.2d 681, 254 P.2d 644 (1953); In re Jackson’s Estate, 112 Cal.App.2d 16, 245 P.2d 684 (1952). The appellant had no such belief. Her status was that of a common law wife under circumstances in which neither state with which the Powells had relevant contacts recognize a common law marriage. Sections 4100, 4213, California Civil Code; Section 122.010, Nevada Revised Statutes, Vol. IV. The issue before us is whether Ms. Mary Stewart Powell under these circumstances can be considered a “surviving wife” or “widow” under the Longshoreman’s and Harbor Workers’ Compensation Act. We hold that she can not.

This Circuit has recognized, as it must, that the meaning of Sections 902(16) and 909 of the Act is a question of federal law. Albina Engine and Machine Works v. O’Leary, 328 F.2d 877 (9th Cir., 1964). However, this Circuit also has recognized that in the absence of a statutory definition of “surviving wife” or “widow” the applicable local law supplies the meaning of these terms. Albina Engine and Machine Works v. O’Leary, supra; Bolin v. Marshall, 76 F.2d 668 (9th Cir., 1935).

California law, while not recognizing the common law marriage, does employ the putative spouse doctrine generously. Thus, a putative wife is entitled to California workmen’s compensation death benefits. Neureither v. Workmen’s Comp. App. Bd., 15 Cal.App.3d 429, 93 Cal.Rptr. 162 (1971); Brennfleck v. Workmen’s Comp. App. Bd., 265 Cal. App.2d 738, 71 Cal.Rptr. 525 (1968). Quite properly, the putative spouse doctrine has been employed to permit such a spouse to qualify as a “surviving wife” under the Act here before us. Holland America Insurance Co. v. Rodgers, 313 F.Supp. 314 (D.C.N.D.Cal.1970). However, no case in California or Nevada has been found in which the common law wife has been extended the protection of the applicable workmen’s compensation act, unless the common law marriage was validly created in a state which recognizes such marriages. Tatum v. Tatum, 241 F.2d 401 (9th Cir., 1957).

California also recognizes that the putative spouse is entitled to take by intestacy on the death of his spouse in the same manner as a validly married spouse. In re Krone’s Estate, 83 Cal.App.2d 766, 189 P.2d 741 (1952); Mazzenga v. Rosso, 87 Cal.App.2d 790, 197 P.2d 770 (1948). In re Krone’s Estate has been used to allow a putative wife to bring an action for the wrongful death of her putative husband. Kunakoff v. Woods, 166 Cal.App.2d 59, 332 P.2d 773 (1958). An agreement to pool earnings entered into by a putative spouse with the other member of the union has also been accorded the same protection that it would have received had there been a valid marriage. Sancha v. Arnold, 114 Cal.App.2d 772, 251 P.2d (1952).

In view of the failure of California and Nevada to recognize the common law marriage, and California’s liberality in extending the equivalent of marital rights to a putative spouse, we are reluctant to depart from our practice of looking to the proper local law to provide the content of the terms “surviving wife” and “widow”. To construe these terms to embrace the common law spouse to some extent would impose upon the residents of California and Nevada a form of marriage which they have rejected in favor of, at least in the case of California, the putative spouse doctrine. It is in this manner that the necessary melioration of the requirements of a valid marriage is accomplished.

It is urged upon us that both changing life styles and the cultural history of Blacks make necessary an interpretation of the Act that would recognize the rights of a surviving spouse of a common law marriage. This federal common law marriage, so to speak, would make uniform the application of the Act and eliminate from its administration the adventitious element of whether the law of a particular state recognized the common law marriage. These arguments are not without a certain appeal. We think, however, they more properly should be directed to Congress. Our view is strengthened by the fact that reliance on local law to supply the meaning of “surviving wife” and “widow” has existed since passage of the Act and Congress has not chosen to intervene. Whatever may be our desire to reform the law, it must be subordinate to our duty faithfully to interpret it in a reasonably consistent manner.

Finally, it has been suggested that the Supreme Court in Thompson v. Lawson, 347 U.S. 334, 74 S.Ct. 555, 98 L.Ed. 733 (1954) has instructed us to interpret the Act in the manner we are rejecting. In our view Thompson v. Lawson teaches no such lesson. The Court there was confronted with a claimant, deserted but not divorced by the decedent, who had not lived with the decedent for 26 years prior to his death and who had “married” and “divorced” another during the intervening period. The issue was whether the claimant was a “widow” within the meaning of the Act, which is defined to include “only the decedent’s wife living with or dependent for support upon him at the time of his death; or living apart from justifiable cause or by reason of his desertion at such time,” 33 U.S.C. § 902(16). The Court resolved the issue against the claimant. She was neither living with, nor dependent for support upon, the decedent. Furthermore, she was not living apart “for justifiable cause or by reason of his desertion at such time.” Her purported remarriage severed the “conjugal nexus” which the Act requires as the basis of her claim. 347 U.S. at 337. A deserted wife remains a deserted wife for the purposes of the Act only so long as she preserves the “conjugal nexus.”

This holding can not be construed to mean that a common law marriage, as defined by federal law, is a “conjugal nexus” and that it alone is sufficient to qualify the claimant as a “surviving wife” or “widow.” Such a meaning excessively extends the relatively narrow holding of the Supreme Court which, as a matter of fact, was designed to reject a holding of this Court which indicated that a claimant who was once a deserted wife remained one for the purposes of the Act although she had “remarried” another. 347 U.S. at 335. See Moore Dry Dock Co. v. Pillsbury, 169 F.2d 988 (9th Cir., 1948). It is for others to determine whether such an extension is desirable.

Affirmed.

      . In re Marriage of Cary, 34 Cal.App.3d 345, 109 Cal.Rptr. 862 (1973) holds that property acquired during “an actual family relationship, with cohabitation and mutual recognition and assumption of the usual rights, duties, and obligations attending marriage”, in which both parties were aware that the marriage was not valid, is to be divided equally pursuant to § 4800, Cal.Civ.Code. We are not prepared to accept this decision standing alone as recognition of the common law marriage by California.
      For a general discussion of the9 status of California law with respect to the rights of a meretricious spouse, see Pinnolis, Illicit Cohabitation: The Impact of the Vallera and Keene Cases on the Rights of the Meretricious Spouse, 6 U.C.D.L.Rev. 354 (1973).


author: TALBOT SMITH, Senior District Judge.

text:
    Albert R. BELL, Appellant, v. Charles WOLFF, Jr., Appellee.
    No. 73-1898.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 18, 1974.
    Decided May 17, 1974.
    Terrence J. Ferguson, Legal Aid Society of Omaha, Robert V. Broom, R. Ladd Lonnquist, Omaha, Neb., Robert S. Catz, Washington, D. C., for appellant.
    Mel Kammerlohr, Asst. Atty. Gen., Lincoln, Neb., for appellee.
    Before HEANEY and STEPHENSON, Circuit Judges, and TALBOT SMITH, Senior District Judge.

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

   TALBOT SMITH, Senior District Judge.

Plaintiff Albert R. Bell appeals from the denial by the court below, after trial to the court, of an award of damages in his civil rights action against Charles Wolff, Jr., Warden of the Nebraska Penal and Correctional Complex. The plaintiff’s principal complaint, which was sustained by the district court, was that he had been subjected to involuntary servitude in violation of the Thirteenth Amendment when, as a pretrial detainee incarcerated in the Penal Complex, he was compelled by the Warden to work without compensation. Damages were not awarded for this and other violations of plaintiff’s constitutional rights, however, because of the court’s finding that the Warden had acted in good faith throughout.

Two principal issues are urged to us on appeal, first that the trial court erred in finding that the Warden acted in good faith and within the scope of his authority as Warden and, second, that the trial court erred in its allocation of the burden of proof as to good faith. We will consider these issues seriatim. It is pertinent to note at the outset that the measure, scope, and application of an asserted immunity under § 1983, arising, as it does, under a federally created cause of action, cannot be restricted or enlarged by state laws concerning official privilege or immunity. As was held by Judge (now Justice) Stewart in Nelson v. Knox, 256 F.2d 312, 314 (6th Cir. 1958)

[T]he extent of the defendants’ insulation from liability under the Civil Rights Act cannot properly be determined by reference to the local rule in Michigan. Surely each state cannot be left to decide for itself which of its officials are completely immune from liability for depriving a citizen of rights granted by the Federal Constitution. The question must be decided as a matter of general law.

Plaintiff Bell was admitted to the Penal Complex on April 7, 1972 pursuant to a court order obtained by Douglas County, Nebraska officials who had been holding him in the county jail pending his extradition to Oklahoma. The order states as a reason for the transfer that the plaintiff posed a security risk to the local jail. At the time of Bell’s admission defendant had been Warden for less than nine months; prison policies were undergoing re-evaluation and many were in a state of transition. The Complex received few prisoners in plaintiff’s classification and no special facilities were available for them. The ordinary procedure was to place “Safekeepers” in “administrative segregation”: they would be locked up in a wing of the prison called the “Adjustment Center” and not allowed to mingle with the general population or participate in the programs (including work) available to the convicts. Warden Wolff interviewed plaintiff upon his admission to the Complex. He was then aware that Bell was an unconvicted “safekeeper”; he also had read the “Confidential Report for Transporting Officer,” a document prepared by Warden Terry of the Douglas County Jail, which indicated that plaintiff was a troublemaker and a “show off.” Part of the purpose of the interview was to determine whether plaintiff’s reputation as a troublemaker was justified. As noted, the Warden was reevaluating the procedures and policies of the institution and was concerned as to whether it'was “necessary to confine a 22 year old man to administrative segregation as a safekeeper.” Accordingly, he offered to permit the plaintiff to take the course normally followed by convicted inmates, that is, assignment to the “Reception and Diagnostic Center” for evaluation and ultimate assignment for work in the general population. Bell was told, however, that he probably would not be paid for his work. Plaintiff accepted the offer and was sent to the reception center where he remained for about a month without incident.

His evaluation complete, Bell was brought before the Initial Classification Committee, chaired by the Warden, to be informed of his “live-in location and work assignment.” Again told that he would not be paid for his work, plaintiff became belligerent and had to be physically removed to confinement. He was placed in punitive segregation for this outburst, and there remained for two weeks. Before the classification committee a second time, on May 23, 1972 he signed a document “requesting the authorities of this institution to let me do some kind of work while at this institution, in order that I will not have to remain confined all day long,” and agreed to work without pay. He was assigned to the general population and worked satisfactorily without pay in one of the institution’s furniture shops until July 11, 1972. On this day he was placed in punitive segregation for refusal to obey a work order and there remained until shortly before his release from the Penal Complex on July 30, 1972.

The Warden explained his refusal to pay safekeepers as based on a lack of money budgeted for that purpose and on “the general policy . . . that since the individual was not a felon, was not entitled to good time or statutory time credits, would not be entitled to be paid for work, and of course, for many years they were not working. They were merely held in a safekeeping status, and were not released from that status while they were there. It is only through these last few years that we have even tried at something a little more toward the area of programming on a safekeeper.” In other words, he was trying something new and wasn’t quite sure he had the authority or the funds to pay Bell; he conceived of the plan as a progressive step, available to safekeepers on a volunteer basis, to relieve them of the rigors of being “confined all day long” in administrative segregation.

The trial court found, however, that plaintiff was not a true volunteer. In a conclusion unchallenged by defendant, it was held that plaintiff had been subjected to involuntary servitude because his signing of the request to work form did not possess sufficient voluntariness to make it constitutionally acceptable. The alternative presented to Bell was to be confined in administrative segregation under conditions which, the court found, violated his constitutional rights to liberty and free speech and association in that he would have been subject to the same regulations governing personal grooming, mail and visitation as convicted inmates, and these regulations were not reasonably necessary to effect the security of Bell’s confinement, the only permissible goal of pretrial detention.

The violations, then, are conceded, but the crux of the ease with respect to the damage remedy here sought is whether the trial court erred in finding that the Warden acted in good faith. Upon careful examination of the entire record we find no error in such finding. Plaintiff’s suggestion that the Warden acted out of personal animus towards him is unfounded. With reference to petitioner’s charge that the Warden had forced him to work, the trial court found, and the record supports, that as a result of the Warden’s conference with the petitioner, the Warden reasonably believed that the petitioner wished to work rather than to remain idle. We agree as well with the trial court that, measured by objective standards, it is clear “that the work program for pretrial detainees was conceived as a progressive step [toward the] humane treatment of those forced to remain in jail while awaiting trial”. Morever, the trial court found that “the defendant since his appointment as warden . . . has sought to alter prison life in accord with progressive court decisions and the best advice of his professional colleagues.” We note, as well, the then absence of authoritative judicial or legislative guidance with respect to the treatment of “safekeepers” lodged in the prison complex for reasons of security. The short of it is that the trial court found the defendant to be conscientiously attempting to effect a progressive administration with the facilities and funds available to him, and the steps taken by him in the furtherance of this objective though, as the trial court found, offensive constitutionally, were undertaken in good faith.

As noted, the parties seek to present the issue of which party has the burden of proving good faith, that is, whether it is a defense to be pleaded and proved by him who asserts it, or whether, as defendant asserts, “the presumption that an officer is properly carrying out his duty must be rebutted by plaintiff, proving bad faith.” We need not explore this problem,- if, indeed, it is a problem in view of the fact that after taking extensive testimony from both the plaintiff and the Warden the trial court made a positive finding that “[t]here simply is not a scintilla of evidence of lack of good faith on the part of the defendant.” In this posture of the case any discussion by us of the burden of proof would be purely academic.

The findings and judgment of the court below are affirmed.

      . Action was brought pursuant to 42 U.S.C. § 1983, which provides :
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

      . See Scheuer v. Rhodes, 42 U.S.L.W. 4543, 4548, -- U.S. -, 94 S.Ct. 1683, 1692, 40 L.Ed.2d 90 (1974) which states that the scope of the immunity of a member of the executive branch is commensurate with “the scope of discretion and responsibilities of [his] office. . . . It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good faith belief, that affords basis for qualified immunity of executive officers for acts performed in the course of official conduct.”

      . See also Jobson v. Henne, 355 F.2d 129, 133 (2nd Cir. 1966), where it is pointed out that the purpose of § 1983 “is to provide a federal remedy for the deprivation of federally guaranteed rights in order to enforce more perfectly federal limitations on unconstitutional state action.”

      . Bell was what is described in the record as a “pretrial detainee”, lodged under state authority for safekeeping only.

      . Under examination by the court the Warden stated he would like to have had a separate facility designed for unsentenced inmates “to house these people segregated from population not being involved in a punitive type approach.” Administrative segregation was used, “lacking other alternatives ... as your routine method because essentially this service is provided the local jurisdiction merely as a holding situation. They are . . . neither brought to us for rehabilitation or programming.”

      . The Warden testified that subsequent to these events “[we] asked for an increase in that particular account without justifying what the increase was for. We received the money. And now if an individual comes in that is a safekeeper, if he works he gets paid the same as any other man working in a comparable job.” Convicts are paid thirty-five cents to a dollar a day for their labor.

      . “The law of privilege as a defense by officers of government to civil damage suits for defamation and kindred torts has in large part been of judicial making * * * ”, Barr v. Matteo, 360 U.S. 564, 569, 79 S.Ct. 1335, 1338, 3 L.Ed.2d 1434 (1959). The holding in Strickland v. Inlow, 485 F.2d 186 (8th Cir. 1973), cert. granted 42 U.S.L.W. 3584,-U.S.-, 94 S.Ct. 1932, 40 L.Ed.2d 285 (1974), as respects malice, went to the negation of a requirement of such specific intent for the recovery of compensatory damages, not to burden of proof.
      With respect to the inter-relation between the traditional doctrine of official privilege, and immunity under the provisions of the Civil Bights Act, see Jobson v. Henne, 355 F.2d 129 (2nd Cir. 1966) and Smith v. Losee, 485 F.2d 334 (10th Cir. 1973), petition for cert. filed, 42 U.S.L.W. 3364 (U.S. Nov. 19, 1973) (No. 73-801) and cases and articles therein cited. Cf. Wilhelm v. Turner, 431 F.2d 177 (8th Cir. 1970).