author: KOELSCH, Circuit Judge:

text:
    In the Matter of CITRON INVESTMENT CORPORATION and Josef A. Citron, Bankrupts-Appellants, v. Marie Wells EMRICH, Applicant-Appellee.
    No. 73-2067.
    United States Court of Appeals, Ninth Circuit.
    Feb. 19, 1974.
    Rehearing Denied March 14,1974.
    Charles L. Birke (argued), Berris, Seton & Birke, Beverly Hills, Cal., for bankrupts-appellants.

      Dulaney W. Palmer (argued), Los An-geles, Cal., for applicant-appellee.
    Before KOELSCH, CARTER and WALLACE, Circuit Judges.
   KOELSCH, Circuit Judge:

We allowed an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) to review an order of the district court affirming a referee’s denial of bankrupts’ motion to dismiss appellee’s application to determine the dischargeability of a debt under Section 17 of the Bankruptcy Act, 11 U.S.C. § 35.

The facts are undisputed. Appellee’s predecessor in interest, her deceased husband, discovered facts in July, 1967, which gave rise to a cause of action for an alleged conversion. Suit was filed against the bankrupts on October 26, 1967, in Los Angeles County Superior Court, but neither the deceased husband nor appellee ever filed an At-Issue memorandum in the action, or took any other steps to bring the case to trial. The bankrupts did not move to dismiss the suit, and it remained pending in the state court on August 23, 1971, when bankrupts filed their petitions in bankruptcy. On November 23, 1971, appellee filed an application to determine the dis-chargeability of the debt in the bankruptcy court, alleging that the debt was nondischargeable under § 17(a)(8) because the alleged conversion had been malicious.

The state statute of limitations on ap-pellee’s claim against bankrupts had expired before the filing of the petitions in bankruptcy. As the bankruptcy court could not entertain a claim barred by the state statute of limitations, e. g., In re Povill, 105 F.2d 157 (2d Cir. 1939), the basis for appellee’s application of necessity is the state court action pending after the expiration of the statute of limitations.

On September 5, 1972, bankrupts moved to file an amended answer seeking dismissal of the application on the ground, inter alia, that the underlying state court action was subject to discretionary dismissal under California Code Civ.Proc. § 583(a) for lack of prosecution. The referee allowed the amended answer to be filed, and ordered that trial of the case be bifurcated, with trial of the affirmative defenses to precede the trial on the merits of the cause of action. Pursuant to stipulation, trial of the § 583(a) issue was based on the pleadings, and argument of counsel, and on September 29, 1972, the referee entered an order in favor of appellee to the effect that the affirmative defense did not preclude adjudication of the claim on the merits. Bankrupts filed a petition for review, which was denied by the district court, and bankrupts then appealed to this court by leave of the district court under 28 U.S.C. § 1292(b).

Section 583(a) provides: “The court, in its discretion, may dismiss an action for want of prosecution pursuant to this subdivision if it is not brought to trial within two years after it was filed. . ” However, both the referee and the district court declined to determine whether a California court would have exercised its discretion under § 583(a) to dismiss appellee’s suit for lack of prosecution at the time the petitions in bankruptcy were filed. Both the referee and the District Judge were of the opinion that under Section 17 the bankruptcy court takes jurisdiction over the state court lawsuit in the posture in which it exists in the state court; and that because the case was pending when the petition was filed, the bankruptcy court was compelled by § 17(c) to adjudicate the claim on the merits, without regard to whether the applicant could have obtained a judgment in the state court in the face of § 583(a).

We agree with the district court’s disposition. The bankruptcy court is not required to apply § 583(a). Under the Erie doctrine (Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)), a federal bankruptcy court will ordinarily apply the substantive law of the state in adjudicating the merits of a case over which it assumes jurisdiction under Section 17. However, § 583(a) is a procedural rule, designed to compel diligence in the prosecution of actions, with scant, if any, relevance to the merits of the substantive claim between the bankrupt and appellee; its application in the present case might prevent the determination on the merits contemplated by the procedure outlined in § 17(c)(3). While a federal diversity court must in some cases apply a state procedural rule which is “outcome-determinative,” 2see Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), there is no certainty here that application of the state procedure in the bankruptcy court will alter the outcome, and therefore no necessity for the court to follow the state procedure. See Byrd v. Blue Ridge Rural Elec. Corp., 356 U.S. 525, 539-540, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958).

Moreover, there are countervailing federal considerations which militate against the application of the state procedure in the bankruptcy court. See Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965); Byrd v. Blue Ridge Rural Elec. Coop., supra. Congress, pursuant to its constitutional authority, has provided in the Bankruptcy Act a nationally uniform set of procedures for dealing with the problem of bankruptcy. Section 17(c) outlines the procedure Congress has approved for a state court plaintiff in appellee’s position to get a determination on the merits of his case and the dischargeability of the debt potential created. The procedure prevents harassment of the bankrupt by suits in state court after he receives his discharge, while facilitating one of the purposes of the Bankruptcy Act, the equitable distribution of the bankruptcy estate among creditors with meritorious claims against the bankrupt.

Here appellee has done everything which Congress required in order to receive a determination on the merits of this case. Once the bankruptcy court assumes jurisdiction over the suit under § 17(c), no bankruptcy policy is served by application of § 583(a), and the bankruptcy court. is not bound to advance the state’s policy when doing so would potentially defeat the statutory policy of equitable distribution to creditors. We therefore conclude that the referee and the district court were correct in declining to apply § 583(a).

The order of the district court is affirmed.

      . We note that one of the major reasons for the Erie rule and the “outcome-determinative” test is absent in the present context— no “forum-shopping” is possible. The choice to invoke the jurisdiction of the bankruptcy court rests initially with the state court defendant, and he may move to have the suit dismissed before filing his petition.

      . Indeed, application of § 583(a) may in some instances lead to dismissals in situations in which the state court would not have dismissed the claim, thereby precluding judgments obtainable in state courts.

      . Once a petition is filed, a debt otherwise nondischargeable under § 17 (a) (8) is discharged unless the creditor files an application with the court to determine dischargea-bility. Sec. 17 (c) (1). Upon doing so, the applicant may be enjoined from proceeding in the state court, § 17(e)(4), and under § 17 (c) (3), the bankruptcy court then “shall determine the dischargeability of any debt. . ” and “if any debt is determined to be nondischargeable, shall determine the remaining issues, render judgment, and make all orders necessary for the enforcement thereof. . . . ”

      . Appellee, of course, may have a claim which is dischargeable, but nevertheless both provable and allowable.

      . Moreover, we note that a part of the state policy served by § 583(a) is likewise accomplished by the application to the bankruptcy court, as the case is effectively thereafter “removed” from the docket of the state court, and state judicial resources are not expended on the adjudication of the claim.


source: Caselaw Access Project

author: EUGENE A. WRIGHT, Circuit Judge:

license: Public Domain

text:
    Charles E. KIMBALL et al., Plaintiffs-Appellants, v. John D. CALLAHAN et al., Defendants-Appellees.
    No. 73-1512.
    United States Court of Appeals, Ninth Circuit.
    Feb. 26, 1974.

      Daniel H. Israel (argued), Reid P. Chambers, Native American Rights Fund, Los Angeles, Cal., Larry A. Asch-enbrenner, Don B. Miller, Klamath Falls, Or., for plaintiffs-appellants.
    Raymond P. Underwood (argued), Chief Counsel, Portland Div., Oregon Dept, of Justice, Beverly B. Hall (argued), Asst. Atty. Gen., Portland, Or., for defendants-appellees.
    Before KOELSCH, WRIGHT and KIL-KENNY, Circuit Judges.
   OPINION

EUGENE A. WRIGHT, Circuit Judge:

Plaintiffs-appellants are Klamath Indians by racial ancestry and claim rights under the Treaty of October 14, 1864, 16 Stat. 707, which established the Klamath and Modoc Reservation in Oregon. Pursuant to the Klamath Termination Act, 25 U.S.C. §§ 564-564x, plaintiffs or their ancestors elected to withdraw from the tribe and have their interest in tribal property converted into money and paid to them. 25 U.S.C. § 564d(a)(2). In order to pay the withdrawing members of the tribe, part of the original tribal property was sold, the greater part being taken by the United States. It now forms a part of the Winema National Forest and the Klamath Forest National Wildlife Refuge.

Plaintiffs seek a declaratory judgment declaring their right to hunt, trap, and fish within their ancestral Klamath Indian Reservation free of Oregon fish and game regulations, pursuant to the Treaty of October 14, 1864, swpra. They also seek an injunction restraining defendants, officers of the State of Oregon, from applying and enforcing Oregon fish and game regulations against them within the boundaries of the old reservation.

The district court denied relief and dismissed the complaint for failure to state a claim upon which relief could be granted. We reverse and grant plaintiffs the declaratory relief they seek.

I

JURISDICTION

At the outset, we note that the defendants challenge the jurisdiction of this court and the district court over the subject matter of this action. The district court had jurisdiction if the matter in controversy exceeded the sum or value of $10,000, exclusive of interest and costs, and arose under the Constitution, laws, or treaties of the United States. 28 U.S. C. § 1331. We find jurisdiction. The matter in controversy is the right to be free from state regulations, and the value of this right is measured by the extent to which plaintiffs’ treaty rights to hunt and fish would be impaired by state regulation. Yoder v. Assiniboine and Sioux Tribes of Fort Peck Indian Reservation, 339 F.2d 360, 363 (9th Cir. 1964).

More specifically, the amount in controversy is measured by determining the value to each plaintiff of the game and fish he would take if completely free of regulation, less the value of the limited amounts of game and fish he could take if regulated by the state. Under similar circumstances this court has found jurisdiction under 28 U.S.C. § 1331, thereby implicitly finding a matter in controversy exceeding a value of $10,000. Holcomb v. Confederated Tribes of Umatilla Indian Reservation, 382 F. 2d 1013, 1014 n. 4 (9th Cir. 1967); see also Leech Lake Band of Chippewa Indians v. Herbst, 334 F.Supp. 1001, 1002 (D.Minn.1971). At any rate, we cannot say with “a legal certainty” that the value of the matter in controversy is really less than the jurisdictional amount. City of Inglewood v. City of Los Angeles, 451 F.2d 948, 952 (9th Cir. 1972).

II

THE TREATY RIGHTS

The Treaty of October 14, 1864, 16 Stat. 707, described the boundaries of the Klamath and Modoc Reservation and stated that the described tract “shall, until otherwise directed by the President of the United States, be set apart as a residence for said Indians, [and] held and regarded as an Indian reservation. . . ” The treaty secured for the Indians “the exclusive right of taking fish in the streams and lakes included in said reservation. . . .’’In 1956 the district court judicially interpreted this treaty also to provide the Indians with the exclusive right to hunt and trap on the reservation without state regulation or control. Klamath & Modoc Tribes v. Maison, 139 F.Supp. 634 (D.Or.1956).

Before deciding if these rights survive the Klamath Termination Act, we first consider whether the treaty was correctly interpreted to include hunting and trapping rights.

In Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968), the Supreme Court considered the Treaty of Wolf River of 1854, 10 Stat. 1064, which granted the Menominee Indians a reservation in Wisconsin. The treaty made no mention of hunting and fishing rights, but provided that the reservation was to be held by the Indians “for a home, to be held as Indian lands are held.” The Court agreed with the Court of Claims that this language includes the right to hunt and fish. 391 U.S. at 406, 88 S.Ct. 1705; Menominee Tribe v. United States, 388 F.2d 998, 1002, 179 Ct.Cl. 496, 503-504 (1967); State v. Sanapaw, 21 Wis.2d 377, 383, 124 N.W.2d 41, 44 (1963).

We find that the language “set apart as a residence for said Indians, [and] held and regarded as an Indian reservation” also includes those rights. The specific treaty provision reserving the Klamaths’ exclusive right to fish could prompt the argument that their treaty excludes the right to hunt. However, in light of the highly significant role that hunting and trapping played (and continue to play) in the lives of the Klamaths, it seems unlikely that they would have knowingly relinquished these rights at the time they entered into the treaty. See Menominee Tribe v. United States, 391 U.S. at 406, 88 S.Ct. 1705; State v. Sanapaw, supra,, 21 Wis.2d at 383, 124 N.W.2d at 44. Moreover, they enjoyed the exclusive rights to hunt, trap, and fish for almost 100 years with the consent and acquiescence of the State of Oregon. Klamath and Modoc Tribes v. Maison, 139 F.Supp. 634, 637 (D.Or. 1956). These facts, coupled with our duty to construe the treaty favorably to the Indians with whom it was made, lead us to conclude that the treaty provides exclusive rights to hunt and trap, as well as fish, free of state regulation.

III

EFFECT OF THE KLAMATH TERMINATION ACT

In 1954 Congress passed the Klamath Termination Act, which became fully effective in 1961. 25 U.S.C. §§ 564-564x. The express purpose of this Act was to terminate federal supervision over the Klamath Tribe of Indians, to dispose of federally owned property acquired for the administration of Indian affairs, and to terminate the provision of federal services to the Indians solely because of their status as Indians.

Pursuant to the Klamath Termination Act, a final roll of all adult members of the tribe was prepared and published in 1956. 25 U.S.C. § 564b. Under the Act, each person whose name appeared on this tribal roll had to elect whether to withdraw from the tribe and receive the money value of his interest in tribal property or to remain in the tribe and participate in a nongovernmental tribal management plan. The Act provides that “[m] embers of the tribe who receive the money value of their interests in tribal property shall thereupon cease to be members of the tribe. . . .”25 U.S.C. § 564e(c).

On the final tribal roll were 2,133 persons. Of these, 1,660 elected to withdraw from the tribe and take their interests in cash. The remaining 473 elected to retain their interests in land and to participate in the land management plan. A part of tribal land proportionate to the number of remaining members was transferred to a private trustee to administer under the statutory management plan. The remainder was sold to pay the withdrawn members, and the majority of this portion is now United States national forest land.

Plaintiffs are five Klamath Indians who withdrew from the tribe. They claim that they nevertheless retain treaty rights to hunt, trap, and fish free of state regulation on the former Indian land that was sold to pay them for their shares in tribal property. Feeling compelled by Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968), we agree.

The Menominee Termination Act [25 U.S.C. §§ 891-902] is similar in several respects to the Klamath Termination Act. Both provide basically for the termination of federal supervision over the property and members of the respective tribes. The Wisconsin Supreme Court held in State v. Sanapaw, 21 Wis.2d 377, 124 N.W.2d 41 (1963), that the hunting and fishing rights of the Menominee Indians were abrogated by Congress in the Menominee Termination Act. The tribe then brought suit against the United States in the Court of Claims to recover damages for the loss of those rights. Menominee Tribe of Indians v. United States, 388 F.2d 998, 179 Ct.Cl. 496 (1967). That court awarded no damages, concluding that the Termination Act did not abrogate the Indians’ rights to hunt and fish. 388 F.2d at 1005-1006.

The Supreme Court affirmed the Court of Claims. Menominee Tribe of Indians v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968). The Court noted that the effect of the Termination Act was that all federal supervision over the tribe and tribal property was to end and that “the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction.” 25 U.S.C. § 899. The Court acknowledged that this language supports a forceful argument that the Termination Act submitted the hunting and fishing rights of the Indians to state regulation and control. The Court, however, reached the opposite conclusion. 391 U.S. at 410, 88 S.Ct. 1705.

Its conclusion was based in large part on Public Law 280 [18 U.S.C. § 1162], passed at the same time as the Menominee and Klamath Termination Acts and which became effective seven years before the Termination Acts became fully effective. That law granted certain states jurisdiction “over offenses committed by or against Indians in the areas of Indian country” named in the Act, which in the case of Wisconsin was described as “All Indian country within the State,” and in the case of Oregon, as “All Indian country within the State except the Warm Springs Reservation.” But Public Law 280 provided further that “Nothing in this section . shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.” (Emphasis added.)

The Supreme Court noted that, at the time Public Law 280 became effective in 1954, the Menominee Reservation had not been terminated and it was still “Indian country” within the meaning of the law. Similarly, the Klamath and Modoc Reservation in Oregon was still “Indian country.” The Court held that Public Law 280 preserved treaty hunting and fishing rights even after termination. The Court’s reasoning compels our conclusion in the present case.

Public Law 280 must therefore be considered in pari materia with the Termination Act. The two Acts read together mean to us that although federal supervision of the tribe was to cease and all tribal property was to be transferred to new hands, the hunting and fishing rights granted or preserved by the Wolf River Treaty of 1854 survived the Termination Act of 1954.

391 U.S. at 411, 88 S.Ct. at 1710. [Emphasis added.]

The Court stated that this construction is in accord with the purpose of the Termination Act, which is only to terminate federal supervision over tribal property and members. Both the Menominee and the Klamath Termination Acts contain a provision rendering inapplicable “all statutes of the United States which affect Indians because of their status as Indians.” 25 U.S.C. §§ 899 and 564q. The Court stated that this provision “plainly refers to the termination of federal supervision. The use of the word ‘statutes’ is potent evidence that no treaty was in mind.” 391 U.S. at 412, 88 S.Ct. at 1711.

The Court emphasized that it would not “construe the Termination Act as a backhanded way of abrogating the hunting and fishing rights of these Indians.” It stated that the intention to abrogate or modify a treaty is not to be lightly imputed to Congress, and it found it “difficult to believe that Congress, without explicit statement, would subject the United States to a claim for compensation by destroying property rights conferred by treaty . . . .” 391 U.S. at 412-413, 88 S.Ct. at 1711.

Defendants argue that Menominee Tribe is distinguishable because of significant differences between the Menominee and Klamath Termination Acts. True, unlike the Klamath Termination Act, the Menominee Act gave no option to the Menominee Indians to withdraw from the tribe and receive the money value of their interests in tribal property. Also, although title to the reservation changed hands in Menominee Tribe, the Menominees continued to occupy the same land before and after the Termination Act. The disputed land in this case, on the other hand, is no longer legally occupied by the Klamaths.

While these are substantial points of distinction, we find nothing in the language of Menominee Tribe to indicate its reasoning does not transcend these distinctions.

Defendants also contend that the reasoning of an earlier decision of this court supports their position. In Klamath and Modoc Tribes v. Maison, 338 F.2d 620 (9th Cir. 1964), certain members of the Klamath tribe, none of whom had elected to convert his tribal interest into money, sought a declaration of their right to hunt and trap, free from Oregon regulation and control, in an area that had formed part of their reservation prior to the Klamath Termination Act. This Court refused to grant such relief and held that, as a result of the Termination Act, no treaty rights attach to land severed from the former reservation. We acknowledge that the Termination Act does not expressly deal with any treaty rights respecting hunting and trapping. We held, however, that the treaty rights are limited to the lands of the reservation and that the Act, by effectively reducing the size of the reservation, “most certainly reduced the area to which those rights attach.” 338 F.2d at 623.

This reasoning cannot stand in light of Menominee Tribe. It is inconsistent with the Supreme Court’s requirement that Congress clearly indicate when it intends to abrogate treaty rights. Moreover, it is inconsistent with the Court’s construction of Public Law 280 that treaty rights with respect to hunting, trapping, or fishing survive the Termination Acts to the extent that they attach to land known as “Indian country” at the time Public Law 280 became effective.

Congress not only failed to indicate clearly an intent to abrogate treaty rights; it in fact expressly preserved at least fishing rights on the former reservation. The Termination Act provides that “[n]othing [in the Act] shall abrogate any fishing rights or privileges of the tribe or the members thereof enjoyed under Federal treaty.” 25 U.S.C. § 564m (b). This court in Klamath and Modoc Tribes v. Maison, 338 F.2d 620 (9th Cir. 1964), stated that if this provision does provide fishing rights on the entire former reservation, a question not before us at the time, it did so by an express statutory grant since the treaty rights themselves could only extend to the now shrunken reservation. Defendants in this case offer a different interpretation and suggest that § 564m(b) does not aid plaintiffs since it applies to “the tribe or the members thereof” and plaintiffs are no longer “members” of the tribe.

Neither of these constructions withstands analysis. Since the Act provides that nothing in it shall abrogate any treaty fishing rights, we conclude that a Klamath Indian possessing such rights on the former reservation at the time of its enactment retains them even though he relinquishes his tribal membership or the reservation shrinks pursuant to the Act. Otherwise, the Act would in fact have resulted in the abrogation of treaty rights.

One final consideration this court must make concerns the extent of plaintiffs’ rights that we here hold survive the Termination Act. Plaintiffs seek no rights against private landowners, acknowledging that those persons might properly exclude Klamaths and anyone else from hunting and fishing if they so desire. Plaintiffs do, however, seek a declaration, and we so hold, that they may exercise their treaty hunting, trapping, and fishing rights free of state fish and game regulations on the lands constituting their ancestral Klamath Indian Reservation, including that land now constituting United States national forest land and that privately owned land on which hunting, trapping, or fishing is permitted.

Accordingly the judgment of the district court is reversed.

      . For a description of the termination process, see Klamath and Modoc Tribes v. United States, 436 F.2d 1008, 93 Ct.Cl. 670, cert. denied, Anderson v. United States, 404 U.S. 950, 92 S.Ct. 271, 30 L.Ed,2d 267 (1971).

      . We do not decide whether the damages to the individual plaintiffs can be aggregated to reach the sum of $10,000.

      . Given jurisdiction under 28 U.S.C. § 1331, the district court had the power, under 28 U.S.C. § 2201, to render the declaratory relief sought by plaintiffs. This court has jurisdiction under 28 U.S.C. § 1291.

      . Defendants state that an earlier decision of this court overruled the district court’s interpretation of the treaty to include hunting and trapping rights. This is incorrect. In Klam-ath and Modoc Tribes v. Maison, 338 F.2d 620 (9th Cir. 1964), we held, incorrectly in light of Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968), that whatever treaty rights the Indians had on land transferred as a result of the Klamath Termination Act were lost. We did not find that the treaty failed to provide hunting and trapping rights. We held that if § 564m (b) of the Act provides fishing rights on the severed land, a question not before us at the time, the rights would be grounded in an express statutory grant rather than in the treaty. Section 564m (b) is discussed in part III of this opinion, infra.

      . The Court noted that this language sums up in one phrase “the familiar provisions of earlier treaties which recognized hunting and fishing as normal incidents of Indian life.” 391 U.S. at 406 n. 2, 88 S.Ct. at 1707.

      . Klamath & Modoc Tribes v. Maison, 139 F. Supp. 634 (D.Or.1956).

      . The Supreme Court in Menominee Tribe reiterated its earlier statement in United States v. Winans, 198 U.S. 371, 380-381, 25 S.Ct. 662, 49 L.Ed. 1089 (1905), that
      “[W]e will construe a treaty with the Indians as ‘that unlettered people’ understood it, and ‘as justice and reason demand, in all cases where power is exerted by the strong over those to whom they owe care and pro-teetion,’ and counterpoise the inequality ‘by the superior justice which looks only to the substance of the right, without regard to technical rules.’ ”
      391 U.S. at 406 n. 2, 88 S.Ct. at 1707; McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 174, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973).

      . The Menominee Termination Act did, however, provide for the payment of $1,500 to each member of the tribe on the final tribal roll. 25 U.S.C. § 894.

      . Indeed, the reason of Menominee Tribe may be even more compelling in this case. At the hearings on the Klamath Termination bill, Senator Watkins suggested that the Government “buy out” the Indians’ hunting and fishing rights rather than preserve them after termination. See Joint Hearings, Subcommittees of the Committees on Interior and Insular Affairs, 83d Cong., 2d Sess., Pt. 4, on S.2745 and H.R.7320 pp. 254-55. Congress did not heed this suggestion, however.
      The Klamath Termination Act provides that withdrawn members of the tribe relinquish their interests in tribal property. 25 U.S.C. § 564e(c). Treaty rights to hunt and fish are, however, rights of the individual Indians. McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 181, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973) ; Mason v. Sams, 5 F.2d 255, 258 (W.D.Wash.1925).

      . We make no holding and intimate no opinion on the treaty rights of the Indians visa-vis the private Oregon landowners.

      . Plaintiffs do not seek exclusive rights, to hunt, trap, and fish on land transferred pursuant to the Termination Act.


author: BIGGS, Circuit Judge.

text:
    UNITED STATES of America v. Michael August POLIZZI, Appellant.
    No. 73-1270.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 14, 1973.
    Decided March 8, 1974.
    Herbert I. Waldman, West Orange, N. J., Jerry N. Friedland, Barr, Kaplus & Friedland, East Orange, N. J., for appellant.

      Herbert J. Stern, U. S. Atty., Richard S. Zacken, Asst. U. S. Atty., Newark, N. J., for appellee.
    Before BIGGS, ADAMS and RO-SENN, Circuit Judges.
   OPINION OF THE COURT

BIGGS, Circuit Judge.

This is an appeal from a conviction under 50 U.S.C. App. § 462(a) for wil-fully failing to submit to induction into the Armed Forces. The case was tried to the court without a jury and, by stipulation, findings of fact were waived. The following facts, however, can be culled from the record.

The appellant, Michael August Polizzi, registered with his local board on September 7, 1967. He received a deferment while attending college but upon his withdrawal was classified 1-A on November 18, 1970. No appeal was taken from this classification. Polizzi was given a preinduction physical examination on January 11, 1971 and on February 16 was ordered to report for induction on March 1.

Subsequent to receiving his order to report for induction, Polizzi made two attempts to have the board reconsider its action. On February 18, 1971; he telephoned the local board and requested a medical consultation to review an alleged psychiatric unsuitability for military service. This request was based on a letter from a clinical psychologist dated February 6, 1971, which resulted from a consultation with the psychologist on the previous day. The letter apparently came into Polizzi’s possession on February 7 or 8. Polizzi was informed that he should bring his letter with him to the Armed Forces Examining and Entrance Station (AFEES) on the day set for induction. The executive secretary for the local board testified that this was the general procedure followed in cases of post induction order claims.

On February 19 Polizzi delivered a letter to his local board which stated that he was a conscientious objector. He was given Form 150 which was submitted by him to the local board on February 25, 1971. Polizzi was informed that he would have to report for induction as scheduled. It appears that neither his claims for psychiatric disability nor conscientious objection were considered by the board but were handled solely by the Clerk.

Polizzi reported to AFEES on the scheduled day and was found qualified for military service. He refused, however, to submit to induction despite warnings that such refusal would subject him to specified sanctions.

On November 9, 1971, Polizzi was indicted and, after a determination that he was competent to stand trial, convicted on March 6, 1973. The district judge sentenced him to a probationary term of five years provided he perform work of “national importance” for a two year period.

Polizzi contends that his reasonable reliance on the ease law then prevailing in this circuit precludes a finding that he “wilfully” refused induction. At the time of his refusal to submit to induction there was a conflict among the circuits concerning the duty or even the power of the local boards to act upon post induction order conscientious objection claims. The conflict was due to varying interpretations of the Selective Service regulation restricting the power of the local board to consider post induction order claims unless deemed to have resulted from circumstances over which the registrant had' no control. Some courts considered the crystallization of conscientious objection as a volitional change barred by the terms of the regulation or a change in status not intended to fall within its purview. Other courts considered such claims as possibly arising involuntarily and within the terms of the regulation as cast. 3 The Supreme Court ultimately decided the conflict in Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971). Although declining to discuss the nature of control over one’s conscience, the Court accepted the interpretation of the regulation which barred local board consideration of these “late crystallizing” claims.

Prior to Ehlert, this Court was of the view that local boards must consider post induction order conscientious objection claims where a prima facie case was established and the requisite change in circumstances alleged. Scott v. Commanding Officer, 431 F.2d 1132 (3d Cir. 1970). Polizzi’s refusal took place while Scott was controlling and the board failed to consider his claim. These circumstances form the basis of the contention that he did not “wilfully” refuse induction within the meaning of 50 U.S.C.App. § 462(a). Cf. United States v. Rabb, 394 F.2d 230 (3d Cir. 1968).

Arguably, we might dispose of this contention by reciting the principle “that an erroneous belief that an induction order is invalid ... is not a defense to a prosecution for refusing induction. . . . ” United States v. Mercado, 478 F.2d 1108, 1111 (2d Cir. 1973); see United States v. Wood, 446 F.2d 505 (9th Cir. 1971). We need not rely, however, on what may be considered a harsh rule; for, despite the stipulation waiving findings of fact, the district court did, in fact, find that Polizzi’s testimony relating to wilfulness was not credible. The evidence presented to counter the Government’s prima facie case does not compel a contrary conclusion. Polizzi testified that he had conferred with two draft counselors and a soldier at the induction station who had been a draft counselor and that they had indicated the board’s responsibility to consider his claim. Polizzi produced at trial only one of the draft counselors who stated that although he remembered seeing Polizzi he could not recall any specific conversation with him and that he would “never advise a man to refuse induction”. Furthermore, advice to refuse induction or that this area of the law was well settled would have been irresponsible and reliance on such advice unjustified in February or March of 1971. The opinions of the various circuit courts were divergent, certiorari had been granted in Ehlert and the case had been argued before the Supreme Court. United States v. Mercado, 478 F.2d 1108 (2d Cir. 1973); United States v. Camara, 451 F.2d 1122 (1st Cir. 1971), cert. denied, 405 U.S. 1074, 92 S. Ct. 1513, 31 L.Ed.2d 808 (1972).

Polizzi asserts that the rule of Ehlert should only be applied prospectively. Neither the Supreme Court nor this Court has afforded that decision such limited application. The Supreme Court applied its interpretation of the regulation to Ehlert in that very case where the definitive Ninth Circuit rule had first been promulgated. In Musser v. United States, supra, the Court applied Ehlert retrospectively to two petitioners. This Court has similarly afforded that decision retrospective application in a number of cases both civil and criminal. See, e. g., United States v. Winer, 456 F.2d 566 (3d Cir. 1972); Babcock v. Local Board, 456 F.2d 1033 (3d Cir. 1972). In none of these cases, however, was the Ehlert principle being applied to a registrant who had refused induction in a circuit whose prevailing law at the time of his refusal was clearly contrary to this rule. Three other circuits, however, have reached the question here in issue and have found Ehlert fully applicable. United States v. Mercado, 478 F. 2d 1108 (2d Cir. 1973); United States v. Camara, 451 F.2d 1122 (1st Cir. 1971), cert. denied, 405 U.S. 1074, 92 S. Ct. 1513, 31 L.Ed.2d 808 (1972); United States v. Kirkpatrick, 446 F.2d 1371 (10th Cir. 1971). We agree that Ehlert should be so applied. The law was unsettled in the circuit courts prior to Ehlert where the Supreme Court validated what it deemed a consistent Government posture with regard to the interpretation of the regulation in issue. 402 U.S. at 105, 91 S.Ct. 1319. The local board’s actions in this case were entirely consonant with this posture. We are not now dealing with the perhaps somewhat unusual situation where actual, reasonable reliance on the Scott decision caused a registrant to refuse induction. In such a case, the comments of the court in Mercado might prove apt; viz.:

“We recognize such a rule might be harsh as applied to a registrant who in fact reasonably relied in good faith on the ease law or upon the knowledge that local boards in this circuit would consider a belated conscientious objection claim, and perhaps there is room for flexibility in enforcement of this rule to avoid injustice in a particular ease, as there surely would be ground for the exercise of prosecutorial judgment.”

478 F.2d at 1111. Polizzi, however, has not presented a case where we must seek means to avoid such injustice since, as we have said, the district court found no reliance and none would have been reasonable during the relevant period.

Polizzi argues that even if Ehlert applies retroactively, it did not relieve the board of responsibility to receive and consider his conscientious objection claims. Keliance is placed on this Court’s decisions in United States v. Zis-kowski, 465 F.2d 480 (1972) and United States v. Shomock, 462 F.2d 338 (1972). The Supreme Court, however, has stated that Ehlert not merely rejected any notion that the board must consider such claims but that the board was without power to reopen and, correspondingly, without power to make any ruling on the merits of a claim. Musser v. United States, supra.

The appellant has cited numerous cases pointing out the board’s responsibility to process claims of registrants and has placed great emphasis on the fact that the Clerk did not place this conscientious objection claim before the board for consideration. Failure of the board to consider and make a decision on a claim on which it had no power to act is not a denial of due process and will not vitiate a subsequent conviction. United States v. Godley, 469 F.2d 638 (2d Cir. 1972); United States v. Berry, 443 F.2d 5 (9th Cir. 1971).

Appellant asserts as error the failure of the local board to inform Polizzi of the military forum for his claim. During the relevant period, there was no legal duty for the draft board to notify the registrant of available in-service review. United States v. Camara, supra; United States v. Charles, 460 F.2d 1093 (6th Cir. 1972) (per curiam). Moreover, Polizzi can hardly claim to have been prejudiced by the asserted unfairness of this procedure since he testified at trial that he was aware of the availability of in-service review. See, e. g., United States v. Berry, supra; United States v. Bellmer, 404 F.2d 132 (3d Cir. 1968); Yeoman v. United States, 400 F.2d 793 (10th Cir. 1968). Finally, see and compare, United States v. Serfass, 492 F.2d 388, filed February 20, 1974.

The judgment of the district court will be affirmed.

      . The power of the local board to consider post induction order claims is governed by 32 CFR § 1625.2. See note 2 infra. Although the regulation’s language is permissive in defining the duty of the local board to reopen a registrant’s classification, it is clear that the board must reopen where the regulatory prerequisites are met and a prima facie case for a new classification is made. See Musser v. United States, 414 U. S. 31, 94 S.Ct. 196, 38 L.Ed.2d 190 (1973) ; United States v. O’Neill, 476 F.2d 295 (9th Cir. 1973). Hence, the procedure apparently followed by this board of instructing registrants to present their claims at AFEES without board consideration might often invalidate the induction order. For reasons discussed below, this does not aid appellant in this case.

      . 32 CFR § 1625.2 (1971) provides:
      [T]he classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction . . . unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.”

      . See Ehlert v. United States, 402 U.S. 99, 101 n. 3, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971).

      . 402 U.S. at 105, 91 S.Ct. 1319. The Court adopted the Government position that the regulation be confined to “ ‘objectively identifiable’ and ‘extraneous’ events and circumstances” such as injury to the registrant. Id. at 104-105, 91 S.Ct. 1323.

      . Transcript, March 6, 1973, at 164.

      . Transcript, March 6,1973, at 146.

      . In Ehlert, the Ninth Circuit deemed its decision, which was subsequently affirmed by the Supreme Court, its first definitive ruling on the subject, but noted that at least one prior case had presented an arguably variant view. 422 F.2d 332, 334 (9th Cir. 1970). That court stated that, to the extent the earlier case was inconsistent with the views expressed in Ehlert, it was overruled. The two petitioners involved in the Musser decision had taken appeals from circuits where, at the time they refused induction, the rule was consistent with that decided in Ehlert. Similarly, Third Circuit cases giving retrospective effect to Ehlert were concerned with operative conduct of a registrant which antedated the Scott decision.
      Seemingly, the Supreme Court’s application of its decision to the petitioners in Ehlert and Musser disposes of appellant’s argument that the failure of the Selective Service Board to promulgate its interpretation of this regulation by rule requires prospective application since at least in Ehlert, the ambiguity was not dispelled until the adjudication then in issue.

      . Compare James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961), a plurality decision of the Supreme Court, opinion of Mr. Chief Justice Warren, at 221, 81 S.Ct. 1052.

      . Ziskowski and Shomock are readily distinguishable from the instant case. In those cases the local boards considered and denied the conscientious objection claims but failed to adequately state reasons for the denials. This procedure served to preclude effective judicial review. Further, this court was concerned that the appearance of board consideration of these claims might jeopardize the availability of in-service review. Fearing that the registrant might be denied a full opportunity to present a prima facie claim for conscientious objection to either the local board or the military, we required the local boards to adequately state the reasons for denial of the claims. In the instant case, however, the board took no action which could be construed by the Army as a consideration of the claim barring in-service review. Hence, the rationale of Shomook and Ziskowski would appear inapposite.
      In any event, the Supreme Court’s opinion in United States v. Musser, supra, undermines these decisions by its conclusion that whatever the board’s reasoning may be in rejecting the claim, the Army could not construe it as a consideration on the merits since the only valid reason for refusal of the claim by the board would be lack of power to consider it.

      . Polizzi has raised numerous claims which have been considered but are deemed without merit. These include his assertion that the board failed to consider his claim for psychiatric disability and his challenge to the New Jersey grand jury selection process. The former contention is groundless since the board would have been barred from considering the claim by 32 CFR § 1625.2. The psychiatric unsuitability claim arose prior to the induction order but was not raised until substantially afterwards. Cf. Scott v. Commanding Officer, 431 F.2d 1132, 1136 (3d Cir. 1970) ; United States v. Jackson, 454 F.2d 821 (5th Cir. 1972) ; United States v. Ford, 431 F.2d 1310 (1st Cir. 1970).
      The latter contention is largely foreclosed by United States v. Lewis, 472 F.2d 252 (3d Cir. 1973). See also United States v. Ross, 468 F.2d 1213 (9th Cir. 1972), cert. denied, 410 U.S. 989, 93 S.Ct. 1500, 36 L.Ed.2d 188 (1973) ; United States v. Gast, 457 F.2d 141 (7th Cir.), cert. denied, 406 U.S. 969, 92 S.Ct. 2426, 32 L.Ed.2d 668 (1972) ; United States v. Guzman, 337 F.Supp. 140 (S.D.N.Y.), aff’d, 468 F.2d 1245 (2d Cir. 1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1397, 35 L.Ed.2d 602 (1973) ; United States v. Arnett, 342 F.Supp. 1255 (D.Mass.1970). Additionally, appellant has not presented sufficient evidential grounds to support his position.


author: FIELD, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Joseph Vincent TRUGLIO, Appellant.
    No. 73-1708.
    United States Court of Appeals, Fourth Circuit.
    Submitted June 28, 1973.
    Decided March 14, 1974.

      John W. Cooper and Frank Cuomo, Jr., of Pinsky, Mahan, Barnes, Watson, Cuomo & Hinerman, Wellsburg, W. Va., on brief for appellant.
    Paul C. Camilletti, U. S. Atty., and M. Blane Michael Special Asst. U. S. Atty., on brief for appellee.

      Before BOREMAN, Senior Circuit Judge, and BUTZNER and FIELD, Circuit Judges.
   FIELD, Circuit Judge:

Upon his guilty plea Joseph Vincent Truglio was convicted of a violation of Title 18, Section 641 of the United States Code. Appealing his conviction Truglio challenges the action of the district court in denying his motion to withdraw his guilty plea which motion was filed shortly after the plea was entered and prior to sentencing.

Truglio was named in a two count indictment, together with four others, Joseph Andrew Bonacci, Jr., Karen Sue Bonacci, Willie Harris and Franklin Victor Tesack. The first count charged the defendants with the unlawful concealment and possession of stolen postal money orders and stamps in violation of 18 U.S.C. § 641; and the second count charged them under 18 U.S.C. § 371 with a conspiracy to commit the substantive offense. Each of the defendants entered a plea of not guilty to both counts. It appears that after the indictment was returned all of the defendants except Truglio retained one Frank Pie-tranton as their counsel. Initially, Truglio had employed an attorney, George Loueas, to represent him and Loucas called upon Pietranton to assist him in the representation of Truglio along with the other defendants. Lou-cas died shortly thereafter and Pietran-ton assumed the sole responsibility of representing all five of the defendants. A joint jury trial of the defendants began on March 20, 1972, and on that and the following . day the Government presented the evidence of twelve witnesses in its case in chief. On the morning of March 22nd prior to resumption of the trial Pietranton and the United States Attorney entered into discussions relative to the possibility of an agreed disposition of the case, and negotiations between the attorneys continued for some three hours, during which period Pietranton conferred with the defendants from time to time. Counsel kept the court advised of their progress and the jury was held in the jury room pending the outcome of the negotiations.

A proposed agreement for disposition of the case was finally reached between counsel and was discussed with the court in camera. Under the agreement Trug-lio and Tesack were to enter guilty pleas to count one of the indictment and the defendant, Karen Sue Bonacci, was to enter a guilty plea to a misdemeanor under 18 U.S.C. § 641. The charges against Joseph Andrew Bonacci and Willie Harris were to be dismissed and the Government further agreed that ultimately, subsequent to sentencing, the charges under count two against Truglio and Tesack and counts one and two against Karen Sue Bonacci were to be dismissed. Additionally, the Government agreed to recommend to the court that a term not to exceed a maximum of five years be imposed upon Truglio and Tesack. The court made no commitment to counsel concerning this arrangement, but indicated that he would be disposed to take the pleas and discuss the proposed disposition with the defendants.

Thereafter, the defendants were called into the courtroom and the United States Attorney stated on the record the proposed disposition of the case which had been discussed with the court. Following the statement by the .United States Attorney, Pietranton stated to the court that he had advised both Tes-ack and Truglio that a plea of guilty appeared to be desirable; that he further had advised them that the proposed agreement was not binding upon the court except that the Government would recommend that the commitment of Truglio and Tesack not exceed a maximum of five years. In the course of his remarks Pietranton stated:

“I think that Mr. Tesack has indicated finally to me that he would tender his plea. And that Karen Sue Bonacci will tender her plea to a misdemeanor. And Mr. Truglio has frankly indicated once that he would, and another time that he would not. At this juncture, I am not absolutely sure what his intention is. But I think that he has a right, of course, your Honor to make up whatever decision he likes but I want to be certain that there are no hidden deals here, or that I have represented to them something which is not true. I want them to be absolutely certain that they understand fully what I represented to them. I think that they have and do understand fully what I have represented to them.
“I don’t know about Mr. Truglio. He will be called on to speak if he desires. I don’t know yet what you want to do.”

This last remark of Pietranton was apparently addressed to Truglio who made no response, and the United States Attorney then made the following statement of his position:

“In view of the announcement by Mr. Pietranton. To further clarify the position of the Government, we will take the action that I have suggested only in the event the three guilty pleas come in as I outlined them in my previous statement.
“If any one of the Defendants vary from what counsel for the defense and myself anticipate, then the Government will not dismiss the indictment. It will not cease the prosecution against all five Defendants and the Government will be prepared to continue with the trial that we have held the jury for, if that would suit the Court’s convenience.”

The defendants were then called to the bar of the court and the United States Attorney tendered the Government’s information charging Karen Sue Bonacci with a misdemeanor. The court advised Mrs. Bonacci relative to the charge in the information, took her plea of guilty thereto, and then questioned Tesack with respect to his plea to count one of the indictment after which Tesack entered a plea of guilty. Finally, the district judge directed his attention to Truglio relative to count one of the indictment and inquired of his plea. Truglio responded that he pled guilty.

Thereafter the court addressed his remarks jointly to Mrs. Bonacci, Tesack and Truglio, advising them of their right to continue to have their guilt or innocence determined by the jury stating, however, that if their pleas of guilty should be accepted their guilt would be resolved thereby and “the case would come to an end.” The court further stated the substance of the respective charges against them and inquired whether, in fact, they had committed the offense to which they had entered their pleas and all three stated that they had. The court also asked the defendants if any promises or threats had caused them to enter their guilty pleas and each answered in the negative. Following this colloquy the court accepted the pleas, and the defendants were advised that final disposition of their cases would be deferred until the court had the benefit of presentence investigations and reports on each of them. Thereupon the United States Attorney moved to dismiss the indictment against Joseph Andrew Bonacci, Jr., and Willie Harris, and further represented to the court that the remaining charges against Karen Sue Bonacci, as well as Tesack and Truglio, would be dismissed after the three defendants had been sentenced. These proceedings and the action of the court were reflected in an order subsequently entered in the case.

On the following day, March 23rd, Truglio consulted with his present counsel relative to the possibility of withdrawing his guilty plea, and on April 7, 1972, counsel submitted a motion for withdrawal of the plea on the grounds that it had been entered “involuntarily, unintelligently, improvidently without the proper advice of counsel and under coercion and duress.” Particularizing, the motion states that at the time he entered his plea Truglio’s faculties were impaired by reason of his being under the influence of drugs which he had taken as prescriptive medication for a severe diabetic condition; that he was subject to extensive pressure and duress during the plea negotiations and was coerced by the threat that his codefend-ants would go to prison unless he entered the plea, and that the Government’s insistence on a “package deal” for all five of the defendants was used as leverage which influenced Truglio to sacrifice his rights in order to enable his codefendants to obtain the benefit of the plea bargain. Finally, the motion asserts that the coercive conduct of Pie-tranton during the negotiations denied Truglio the effective assistance of counsel.

The Government filed its answer to the motion and a hearing was conducted on May 31, 1972. Truglio was the only witness who testified at the hearing, but in acting on the motion the court also considered the record of the trial and the plea proceedings as well as certain affidavits which had been filed. At the conclusion of the hearing the district judge made oral findings from the bench in which he stated that while Truglio appeared somewhat “sullen and sulky” at the time he entered his plea, nevertheless he was “alert and very well possessed of his faculties.” The court then referred to the transcript of the proceedings on March 22, 1972, and upon this review of the record concluded that Truglio’s plea had been entered voluntarily and denied the motion for withdrawal thereof.

In United States v. Tabory, 462 F.2d 352, 354 (4 Cir. 1972), in considering the questions incident to a motion for withdrawal of a plea of guilty prior to sentencing, Judge Butzner stated the applicable principles as follows:

“Before sentence, a trial court may allow withdrawal of a plea of guilty for any fair and just reason. Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). We have said that leave to withdraw before sentencing normally should be allowed. United States v. McGirr, 434 F.2d 844, 847 (4th Cir. 1970); United States v. Roland, 318 F.2d 406, 409 (4th Cir. 1963) (dictum). But this dispensation should not be as freely granted when the government has been prejudiced by reliance on the defendant’s guilty plea. United States v. Stayton, 408 F.2d 559, 561 (3d Cir. 1969); see 2 C. Wright, Federal Practice and Procedure § 538 (1969). Then the trial court must weigh the defendant’s reasons for seeking to withdraw his plea against the prejudice which the government will suffer. On appeal, the court’s denial of the motion will be overturned only for abuse of discretion. United States v. Ford, 363 F.2d 375, 377 (4th Cir. 1966); United States v. Guerini, 296 F.2d 33, 34 (4th Cir. 1961).” (Footnote omitted).

Unquestionably, in the present case the dismissal of the charges against Bonacci and Harris coupled with the abortion of the trial after two days of evidence constituted substantial prejudice to the Government and, accordingly, it is necessary to determine whether Truglio’s reasons for seeking to withdraw his plea are sufficient to outweigh this prejudice.

We have little difficulty with respect to Truglio’s allegation that he was not in control of his faculties at the time he entered his plea due to the influence of the medication he had taken. In order to prevail on this point, it would be necessary for Truglio to demonstrate “that his mental faculties were so impaired by drugs when he pleaded that he was incapable of full understanding and appreciation of the charges against him, of comprehending his constitutional rights and of realizing the consequences of his plea.” United States v. Malcolm, 432 F.2d 809, 812 (2 Cir. 1970). Our review of the record convinces us the court’s finding that Truglio was “alert and very well possessed of his faculties” at the time he entered his plea was correct. However, Truglio’s charges with respect to the conduct of his counsel and the coercive atmosphere attendant upon his plea presents a more serious question.

In his bench decision on the motion the district judge focused his attention almost exclusively upon a review of the record in the context of the requirements of Rule 11, Fed.R.Crim.P., and as heretofore stated, it was on this basis that he concluded Truglio’s plea was voluntary. However, it is clear from the grounds assigned and the evidence presented at the hearing that disposition of Truglio’s motion required something more than a mere review of the plea proceedings measured by the bare bones requirements of Rule 11. While a court’s inquiry pursuant to the Rule may often be appropriately dispositive on the issue of voluntariness, it is not necessarily conclusive; and the fact that the defendant in open court has stated at the time of his plea that it was not coerced, while evidential on the issue, does not foreclose further inquiry. See Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973); Walters v. Harris, 460 F.2d 988 (4 Cir. 1972); United States v. Rundle, 221 F.Supp. 1003 (E.D.Pa.1963); United States v. Tateo, 214 F.Supp. 560 (S.D.N.Y.1963).

First of all, we feel that under the circumstances present here the district judge should have conducted a much more searching inquiry on the aspect of voluntariness prior to acceptance of the guilty pleas, especially with respect to Truglio. While Rule 11, of course, requires the district judge to address the defendant personally and determine that the plea is voluntarily entered with a full understanding of the nature of the charge and the consequences of his plea, it has often been observed that no particular litany is prescribed and “[t]he nature of the inquiry * * * must necessarily vary from case to case.” See McCarthy v. United States, 394 U.S. 459, 467 n. 20, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969).

Here the court knew that the plea bargain had been negotiated by one attorney who represented all five of the defendants, and while representation of codefendants by the same attorney is not in itself tantamount to the denial of effective assistance of counsel, “[t]he very fact that two or more co-defendants are represented by the same counsel should alert a trial judge and cause him to inquire whether the defenses to be presented in any way conflict.” United States v. Lovano, 420 F.2d 769, 772 (2 Cir. 1970). Additionally, the caveat of Pietranton’s statement in open court indicating Truglio’s equivocal position on the proposed plea was sufficient to presage a serious question of voluntariness. These circumstances, in our opinion, called for an in-depth inquiry by the court to determine that Truglio’s guilty plea was a voluntary act on his part, free from any coercive influence resulting from the multiple representation by Pietranton or the nature of the proposed bargain itself. A guilty plea has been described as “perhaps the most devostating waiver possible under our Constitution,” and the obligation of the trial court to monitor the constitutional rights of a defendant “is not to be discharged as a mere matter of rote, but with sound and advised discretion.” Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854 (1930).

Aside from the inadequacy of the plea inquiry, we find substantial support for Truglio’s position in the record of the hearing on the motion held on May 31, 1972. On that occasion, Truglio testified that on the morning of March 22nd Pietranton advised the five defendants that “they had to plead’ guilty” and initially all five rejected this suggestion. Later, Pietranton returned and informed them that one charge would be dismissed and the other charge would be reduced to five years if guilty pleas were entered. There apparently was further discussion and again the attorney left the room, finally returning and advising the defendants of the agreement which had been reached with the United States Attorney, stating “that the girl would get probation on a misdemeanor and Frank Tesaek and myself would have to plead guilty to five years.”

Truglio testified that he repeatedly told his attorney he did not want to plead guilty but that Pietranton was insistent that he do so and at one point threatened to withdraw as his counsel if Truglio did not cooperate with the plea arrangement. Pietranton had further stated that if he failed to go along with the proposal all five defendants would go to the penitentiary, and that unless he plead guilty he would be responsible for Karen Bonacci getting ten years in the penitentiary instead of probation.

The Government did not call Pietran-ton as a witness at the hearing on the motion, and Truglio’s testimony concerning the coercive and abrasive nature of their discussions during the course of the plea negotiations stands unrefuted. We do not necessarily condemn Pietran-ton or suggest any bad faith on his part in the conduct of the negotiations. However, as stated in Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680, (1942), “irrespective of any conflict of interest, the additional burden of representing another party may considerably impair counsel’s effectiveness.” It is quite understandable that having obtained what he considered to be a favorable bargain for all of the defendants Pietranton would be somewhat more than reluctant to see the bargain collapse in its entirety by Truglio’s insistence that the trial continue-

As we have previously noted, the representation of codefendants by the same attorney is not necessarily a denial of effective assistance of counsel, and con-cededly in the context of the Sixth Amendment “[tjhere must be some showing of a possible conflict of interest or prejudice, however remote, before a reviewing court will find the dual representation constitutionally defective.” Walker v. United States, 422 F.2d 374, 375 (3 Cir. 1970). In Sawyer v. Brough, 358 F.2d 70 (4 Cir. 1966), we had occasion to apply the principle of Glasser v. United States, supra, with the following observation:

“The salient fact remains that divergent interests did exist, and therefore an opportunity was presented for the impairment of Sawyer’s right to the unfettered assistance of counsel. It is not necessary that Sawyer delineate the precise manner in which he has been harmed by the conflict of interest; the possibility of harm is sufficient to render his conviction invalid.” p. 73.

Upon the record before us, we find that Truglio’s interests were so commingled with those of his four codefendants that it was impossible for Pietranton to devote his full efforts on behalf of Truglio. Documented as it is, this was a denial of effective assistance of counsel which clearly outweighs the prejudice which the Government will suffer, and it was an abuse of discretion by the trial court to deny Truglio’s motion.

Accordingly, we reverse Truglio’s conviction and remand this case to the district court with directions to vacate Truglio’s guilty plea and permit him to plead anew to the indictment.

Reversed and remanded.

      . Following a hearing, the district court denied Truglio’s motion by an order entered on June 6, 1972. Truglio appealed that order but the appeal was dismissed by this court when it came to our attention that there was no appealable order since Truglio had not at that time been sentenced. United States v. Truglio, 475 F.2d 1401 (4 Cir. 1973).

      . Stewart, J., concurring, Dukes v. Warden, 406 U.S. 250, 258, 92 S.Ct. 1551, 1555, 32 L.Ed.2d 45 (1972).

      . Truglio received a sentence of six years ■which, of course, exceeded the term of the plea bargain. This in itself might be a sufficient basis for withdrawal of the guilty plea. See United States v. Gallington, 488 F.2d 637 (8 Cir. 1973) ; United States ex rel. Culbreath v. Rundle, 166 F.2d 730 (3 Cir. 1972). Cf. ABA Standards, Pleas of Guilty (Approved Draft, 1968) Sec. 3.3(b) ; Proposed Amendments to the Federal Rules of Criminal Procedure, 52 F.R.D. 409, 415. However, in our disposition of the present case it is unnecessary that we address ourselves to that question.


author: McNICHOLS, District Judge: HUFSTEDLER, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Orlan HOLLEY, Defendant-Appellant.
    No. 73-1753.
    United States Court of Appeals, Ninth Circuit.
    March 11, 1974.
    Rehearing Denied May 8,1974.

      Alexander L. Landon (argued) San Diego, Cal., for defendant-appellant.
    Harry D. Steward, U. S. Atty., E. Mac Amos, Jr., Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.
    David B. Moon, Jr., Bourne, McDade, Fitzgerald & Moon, San Diego, Cal., for amicus.
    Before CHAMBERS and HUFSTED-LER, Circuit Judges, and McNICHOLS District Judge.

      Honorable Ray McNichols, United States District Judge, District of Idaho, sitting by special designation.

   OPINION

McNICHOLS, District Judge:

Appellant, Holley, was convicted after trial by jury, on all counts of a four-count indictment charging the illegal transportation of four aliens as proscribed by 8 U.S.C. § 1324(a) (2).

During the course of the trial, the central issues in controvery were knowledge and intent on the part of the defendant. It is not disputed that Holley was a taxicab driver operating in the South Bay area of San Diego County, California, who responded to a radio call from the company dispatcher; that as a result of the dispatcher’s instruction he proceeded to an area near a used car lot where he picked up four male passengers ; that the passengers were Mexican Nationals, illegally in the United States, who had illegally entered the United States within three years prior to entering the taxicab operated by the appellant; and that appellant transported the aliens in the cab. It was incumbent on the government to further prove knowledge and intent on the part of the defendant. Bland v. United States, 299 F.2d 105 (5th Cir. 1962).

As proof of knowledge on the part of the appellant that the passengers were aliens, illegally in the country, and to prove intent by him to transport them in violation of the law, the government offered evidence which tended to establish the following facts:

1. That the area where the passengers were picked up was a semi-isolated spot with brushy ground cover nearby.

2. That the passengers did not speak English.

3. That they appeared to be of Mexican descent.

4. That, they wore mud-stained clothes.

5. That they were not certain of their exact destination and did not have sufficient money to pay the potential fare.

6. That appellant had been, on a prior occasion, detained by police authorities for transporting illegal aliens in his private automobile.

7. That upon arrest in the instant case, appellant made a statement to the immigration authorities in which he indicated that he was aware of the illegal alien status of the four men.

It is clear that the government adequately met the requisite burden of proof and that a prima facie case was established. When we view the evidence, as we must, in the light most favorable to the government, (Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L. Ed. 680) we hold, contrary to appellant’s contention, that the evidence was sufficient to sustain the convictions.

A vigorous defense was mounted, calculated to controvert the elements of knowledge and intent. Through appellant himself, other cab drivers, a labor union representative for the taxi drivers union, and taxi company executives and employees, a picture of the difficulties facing cab drivers in the South Bay area of San Diego County was illuminated,

This evidence tended to show that because of the close proximity to the Mexican-American border, a high percentage of cab passengers in the area are people of Spanish or Mexican lineage, many of whom do not speak English. It was shown that frequently illegally entered aliens used or attempted to use taxicabs for transportation. The authorities and the labor union representing the drivers had unsuccessfully tried to work out methods whereby drivers could report suspected aliens. It was contended that drivers, depending on tips for adequate earnings, could not, from a practical standpoint, demand identification from prospective passengers to determine legal right to be in the United States. It was further emphasized by evidence produced on behalf of the appellant that taxicab company policy and local ordinance each required that cab drivers avoid discrimination and accept fares seeking transportation.

Appellant contends that the. Court unduly and erroneously limited this defense evidence offered to depict the quandary in which cab drivers in the area in question found themselves. It is stressed that such evidence was vitally important to show the potential state of mind of the defendant as it bore on the essential issues of knowledge and intent, We have therefore carefully reviewed the evidentiary transcript and find that, notwithstanding the appellant’s assertions, the evidence was permitted to be rather fully developed. We entertain no doubt but that the jury was well apprised of the defense theory and the underlying problems facing the defendant as a ca^ driver in the area. In this respect, no error is demonstrated.

During the testimony of the appellant, defense counsel sought to introduce into evidence, as an exhibit, an extract from the San Diego County Regulatory Code, making it an offense for a licensed cab driver to refuse a prospective passenger. The authenticity of the proffered exhibit was not challenged. Upon offer, the Court ruled that the exhibit would be admitted as being relevant to the defendant’s state of mind if a proper foundation were laid to show that the accused was in fact familiar with the contents. Unfortunately for the defense, Holley’s testimony in this regard was conflicting. While he initially testified that he knew that he was obliged to tender service to all prospective passengers, when pressed as to a specific knowledge of the sections of the ordinance contained in the exhibit, he admitted to being unsure that he had ever seen them. On this state of the evidence the trial court sustained an objection to the exhibit on the ground that the necessary foundation was lacking. Appellant and amicus strenuously urge that the exclusion of the exhibit constituted reversible error. We disagree. The Court below ruled favorably on the admissibility of the exhibit subject to adequate acquaintance with the contents by the witness, which acquaintance was not established. The appellant was permitted to testify that he knew of some law or regulation which was a- part of his union contract and which required taxi drivers to pick up all prospective passengers. He and two other witnesses were likewise permitted to testify that the established policy of the employer taxicab company required the drivers furnish rides to all prospective passengers at the risk of loss of employment. Again it is evident that appellant was allowed to fully develop a theory of the defense and the rejection of the exhibit itself was not reversible error.

We are strengthening our view that appellant was able to adequately present in full the various defense theories by the fact that no contention is made that the jury argument was curtailed in anywise or that the jury was improperly instructed on the law.

Three other citations of error merit consideration.

Counsel for the appellant submitted to the Court in advance of the trial a list of forty-two proposed voir dire questions which he requested the Court to direct to the prospective jurors. We have examined these questions and have compared them with the voir dire conducted by the trial judge. The majority of areas of inquiry covered by the request of defense counsel were covered by the trial judge in his questioning. This Court is committed to the rule that the scope of the voir dire examination is a matter within the sound discretion oj: the trial judge. Haslam v. United States, 431 F.2d 362 (9th Cir. 1970). Our study of the record discloses no abuse of that discretion.

Appellant had been apprehended on a prior occasion while transporting illegal aliens (although no prosecution resulted). The trial judge allowed testimony to this effect over objection by appellant’s counsel. Generally, evidence of a prior criminal act is inadmissible, but as an exception to the rule, such prior act may be introduced to show state of mind or intent, design, knowledge or lack of innocent purpose. In the present case where appellant’s knowledge was a critical issue, there was no abuse of discretion in the admission of evidence of the prior similar conduct. United States v. Jiminez-Robles, 415 F. 2d 308 (9th Cir. 1969).

During the cross-examination of the defendant, government counsel was permitted, over objection, to elicit an admission of a prior felony conviction. The prior conviction occurred more than thirty years before the trial and was in no way related to the present activity. The admission of evidence of prior felony convictions, for the purpose of impeachment of the defendant-witness, has been consistently countenanced in this Circuit. United States v. Michaelson, 453 F.2d 1248 (9th Cir. 1972).

No reversible error being demonstrated in the record, we affirm.

HUFSTEDLER, Circuit Judge

(dissenting) :

In my view the admission of evidence that Holley had been arrested for transporting illegal aliens and the introduction of evidence of his 30-year-old conviction for forgery were errors requiring reversal.

The majority opinion concludes that appellant’s May 1972 arrest for transporting illegal aliens was admissible for the purpose of proving his knowledge that the persons he transported in his taxicab in 1973 were aliens illegally in this country. The Government’s foundation for the introduction of this evidence was inadequate because it failed to demonstrate sufficient similarity between the events that anteceded Holley’s 1972 arrest and those that led to the charges that brought him here. (See, e. g., Parker v. United States (9th Cir. 1968) 400 F.2d 248, 251-252; 2 Wigmore, Evidence (3d ed. 1940) §§ 302, 324.) In 1972, Holley picked up a well-dressed man and woman who were hitchhiking near his cab garage and gave them a ride in his private automobile. He drove them through the DeLuz Canyon, a route that circumvents a highway alien checkpoint. A border patrol agent ascertained that the couple were illegal aliens. The 1973 incident from which this conviction resulted involved transporting four alien males in his taxicab after he had responded to a radio call from the company dispatcher. The locality of the 1973 pick-up was an urban area a substantial distance from the cab garage. The number, age, sex, and attire of the aliens in each instance were different. The mode of transportation and the locations were different. Indeed, no similarity whatever exists between the two sets of events except that the persons transported eventually were identified as illegal aliens. However, even if the two incidents were substantially similar, the prior arrest was in no way relevant to the issue of Holley’s knowledge that the four persons he transported in his taxicab in 1973 were illegally in the country. To infer Holley's knowledge from the fact that a year earlier he had transported different people under different circumstances who were also illegal aliens is rationally permissive only if common experience teaches that a person who has seen two illegal aliens can distinguish on sight any other illegal aliens. Common experience is to the contrary. (See generally United States v. Mallides (9th Cir. 1973) 473 F.2d 859, 861.)

The introduction of this evidence over objection was not harmless error. The only seriously contested factual issue was knowledge; upon this issue the circumstantial evidence was equivocal. The propriety of the introduction of evidence of prior illegal acts is always an unusually sensitive question because of the inherent tendency of fact finders to give it excessive weight. (1 Wigmore, supra § 192; cf. Parker v. United States, supra.) In a case like this one, where the jury might have credited the defense testimony on knowledge, the improper admission of the evidence could well have had a substantial effect on the jury. (See, e. g., Kotteakos v. United States (1946) 328 U.S. 750, 764-765, 66 S.Ct. 1239, 90 L.Ed. 1557; United States v. Lopez-Cruz (9th Cir. 1972) 470 F.2d 193, 194.)

Use of Holley’s 1942 forgery conviction to impeach his credibility as a witness was also reversible error. It has been recognized in recent years that the probative value of prior felony convictions on the issue of credibility can be outweighed by the prejudice which revelation of the defendant’s past crime would cause. (See, e. g., Luck v. United States (1965) 121 U.S.App.D.C. 151, 348 F.2d 763; United States v. Palumbo (2d Cir. 1968) 401 F.2d 270.) One of the factors of particular importance in balancing possible prejudice against probative value is the remoteness of the conviction : “The nearness or remoteness of the prior conviction is also a factor of no small importance. Even one involving fraud or stealing, for example, if it occurred long before and has been followed by a legally blameless life, should generally be excluded on the ground of remoteness.” (Gordon v. United States (1967) 127 U.S.App.D.C. 343, 383 F.2d 936, 940 (Burger, J.); see United States v. Puco (2d Cir. 1971) 453 F.2d 539, 543.)

To be sure, the so-called Luck rule has not been fully adopted by our court. (United States v. Valle-Rojas (9th Cir. 1972) 469 F.2d 79, 80. Compare United States v. Walling (9th Cir. 1973) 486 F.2d 229, 237-238 (there is a division of opinion in the circuit as to the applicability of the Luck doctrine) and United States v. Stroud (9th Cir. 1973) 474 F. 2d 737, 739 (“It is not clear whether the Luck rationale has been adopted in this Circuit.”) with United States v. Villegas (9th Cir. 1973) 487 F.2d 882, 883 (“The point of our prior decisions is that in this circuit reversible error cannot be predicated upon a refusal to follow the Luck rule.”).) Nevertheless, we have frequently recognized that old convictions are not a meaningful index of propensity to lie and therefore have followed the well-established rule that some convictions may be too hoary to bear reasonably on the present credibility of a defendant. (E.g., United States v. Allison (9th Cir. 1969) 414 F.2d 407, 412 (“proof of prior convictions for impeachment should be excluded' if the trial judge, in the exercise of his discretion, concludes that it lacks sufficient probative value because of the remoteness in time of the convictions”); Singleton v. United States (9th Cir. 1967) 381 F.2d 1, 4; see McCormick, Evidence (1954) § 43, at 91.)

The district court apparently recognized its responsibility to exclude unduly old convictions, for it actually ruled, during a colloquy at the bench, that the conviction was not too remote to be used. This ruling was an abuse of discretion.

The conviction used to impeach Holley was more than 30 years old; that is approximately 20 years older than those convictions which will be permitted in federal court for impeachment purposes once the proposed rules of evidence are adopted. (See Proposed Rule 609(b).) Although the 10-year limit is not yet the law of our circuit, and while it may be preferable not to establish rigid age limitations on the use of prior convictions for impeachment purposes, I believe that use of a 30-year-old conviction in the case at bench unduly prejudiced the defendant. Accordingly, we should hold that the district court abused its discretion in not excluding Holley’s conviction. Again, because the issues in the case were close, it is not possible to hold that the error was harmless.

I would reverse.

      . San Diego County Code of Regulatory Ordinance 21.320.
      (m) It shall be unlawful for the driver or operator of any taxicab to refuse a prospective passenger or to take any action to actively discourage a prospective passenger unless the taxicab driver believes that the prospective passenger may constitute a hazard to such driver.
      (n) Violation of any of the provisions of this section shall constitute grounds for the immediate suspension or revocation of the driver’s identification card.

      . Pursuant to an Order of this Court, counsel for the Transportation and Allied Workers of California, Seafarers International Union of North America, A.F.L.-C.I.O. Cab Drivers Division, were permitted to file a brief in amicus curiae.

      . On this state of the record we need not examine into the propriety of the practice of admitting extracts from local statutes or ordinances into evidence vis-a-vis the taking of judicial notice by the Court of such laws. Here no request was made of the trial judge that he take judicial notice of the regulation involved.

      . The appellant was of the impression that the regulatory provision was a city ordinance of the City of San Diego.

      . Because the Government failed to establish that introduction of evidence concerning the May 1972 incident was permissible under an exception to the general rule excluding evidence of prior misconduct, it is unnecessary to consider the problems inherent in using an arrest, which is in effect only an accusation, as evidence of prior misconduct. (See generally Lyda v. United States (9th Cir. 1963) 321 F.2d 788, 796; Davis v. United States (8th Cir. 1956) 229 F.2d 181, 185.)


author: GEWIN, Circuit Judge:

text:
    Harrison J. CHERAMIE, Jr., Plaintiff-Appellant, v. Honorable Ben N. TUCKER, etc., et al., Defendants-Appellees.
    No. 73-3944
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 2, 1974.
    Rehearing Denied June 6, 1974.

      Arthur Cobb, Baton Rouge, La., for plaintiff-appellant.
    William J. Guste, Jr., Atty. Gen., Robert C. Funderburk, Jr., Sp. Counsel, Baton Rouge, La., for Hon. Ben N. Tucker, et al.
    Charles Wm. Roberts, Baton Rouge, La., for State of La. et al.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

       Rule 18, 5th Cir. See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409.

   GEWIN, Circuit Judge:

The appellant, Harrison Cheramie, was severely injured in an automobile accident on March 4, 1967. He brought suit against the Louisiana Department of Highways in the state district court alleging that his injuries resulted from the Department’s failure to erect and maintain two traffic control devices. On the facts as found by the trial judge he was awarded a judgment in excess of $1.2 million. Under Louisiana’s system of appellate review of the facts as well as the law the Louisiana First Circuit Court of Appeal reversed and rendered judgment against the appellant landing that the factual findings of the trial court were manifestly erroneous.

After several unsuccessful attempts to reverse the appellate decision upon direct review the present action was filed in the federal court. Pursuant to 42 U.S.C. § 1983 the appellant asserts that by their action the appellate judges were “persons” depriving him of his due process rights under the fourteenth amendment. In addition to the three appellate judges the State of Louisiana was named as a defendant through its Department of Highways. The district court granted the judges’ motion for summary judgment and the State’s motion for dismissal. We affirm.

It is well established that states and their political subdivisions are not “persons” within the meaning of 42 U.S.C. § 1983. The same can be said of the various arms of state government such as the Department of Highways. It is clear, therefore, that the motion to dismiss filed on behalf of the State of Louisiana through the Department of Highways was properly granted.

The appellant, however, has also sued the three appellate judges individually and in their judicial capacity. Although suing the judges individually satisfies the “person” requirement of § 1983, it does not end the appellant’s problems. Section 1983 does not affect the well established rule that judges are immune from damage suits arising out of the exercise of their judicial function. Chief Justice Warren clearly enunciated the necessity for the judicial immunity doctrine. He stated:

New doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it “is not for the protection or benefit of a malicious or corrupt judge, but' for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.” (Scott v. Stansfield, LR 3 Ex 220, 223 (1868) quoted in Bradley v. Fisher, supra, 349, note, at 350, 20 L.Ed. at 650.) It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.

While recognizing the judicial immunity to suits for damages the appellant contends that judges are susceptible to civil rights actions seeking equitable relief. The appellant does not seek damages from the judges. Rather he requests that this court hold their decision to be unconstituti onal.

There is indeed some authority recognizing a distinction between suits for damages and suits for purely equitable relief. Rarely in this line of cases, however, has there been any real interference with the discretionary functions of a judge. In the instant case the requested relief would directly and irrebutably interfere with a discretionary judicial function. Furthermore, it is far from clear that the relief appellant requests is equitable. He requests us to hold the state appellate decision unconstitutional, a measure which would presumably reinstate the judgment rendered in the trial court. In essence the appellant seeks reinstatement of a damage award against the State of Louisiana’s Highway Department. This is a result not directly obtainable under § 1983. While there is a judicial reluctance to see a result achieved indirectly which may not be achieved directly our decision need not be based on so narrow a ground.

The substance of the appellant’s claim is not the unconstitutionality of the Louisiana system but the alleged unconstitutional application of the system to his case. In essence he contends that the state court merely paid “lip service” to the doctrine of manifest error which is alleged to save the constitutionality of the Louisiana system. 10To reach this issue it is necessary to re-examine the validity of the state court judgment. The state appellate decision is incorrect only if it was not manifestly erroneous for the trial court to find the Department of Highways negligent in the maintenance of traffic control signals. This issue has already been litigated to a judicial conclusion and the doctrine of collateral estoppel, therefore, comes into view.

This court recently quoted with approval the following principle:

“It is a fundamental principle of jurisprudence that material facts or questions which were in issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein, and that such facts or questions become res judicata and may not again be litigated in a subsequent action between the same parties or their privies, regardless of the form the issues may take in the subsequent action, whether the subsequent action involves the same or a different form of proceeding, or whether the second action is upon the same or a different cause of action, subject matter, claim, or demand, as the earlier action. In such cases, it is also immaterial that the two actions are based on different grounds, or tried on different theories, or instituted for different purposes, and seek different relief. * * * (Emphasis in original)

The appellant has had a full and fair opportunity to litigate the issue of the Highway Department’s negligence. For this court to grant the appellant his requested relief it would be necessary to reexamine the negligence issue. This we decline to do. It does not appear to be appropriate under any theory advanced by the appellant for this court to review the decision of the appellate courts of Louisiana in a negligence case.

The judgment of the district court is, therefore, affirmed.

Affirmed.

      . In Melancon v. McKeithen, 345 F.Supp. 1025 (E.D.La.), aff’d mem. sub nom. Hill v. McKeithen, 409 U.S. 943, 93 S.Ct. 290, 34 L.Ed.2d 214 (1972), a three-judge district court held that the Louisiana system of appellate review did not violate the due process clause of the Fourteenth Amendment. The court stated:
      The law of this state is unique. Nevertheless its lawmakers, legislative and judicial, have managed to work out compromise procedures compatible with Louisiana’s civilian heritage and with the Anglo-American concept of due process. There is appellate review on the facts as well as the law, but it is subject to the requirement that factual findings of a trial court or the verdict of a jury should be disturbed only when they are manifestly erroneous.

      . Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) ; Williford v. People of California, 352 F.2d 474 (9th Cir. 1965).

      . Bennett v. People of California, 406 F.2d 36 (9th Cir. 1969) (inapplicable to the California Department of Corrections).

      . Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) ; Zuckerman v. Appellate Div., Supreme Court of New York, 421 F.2d 625, n. 2 (2d Cir. 1970).

      . Pierson v. Ray, 386 U.S. 547, 553-554, 87 S.Ct. 1213, 1217-1218, 18 L.Ed.2d 288 (1967). The doctrine seems just as firmly entrenched in the civil law system of Louisiana as in the common law of which the Chief Justice spoke. In Killeen v. Boland, Gschwind Co., 157 La. 566, 102 So. 672, 675 (1925) the Louisiana Supreme Court stated that “[o]n the highest grounds of necessity and public policy judges cannot be held liable for acts done by them in their judicial capacity.”

      . United States v. McLeod, 385 F.2d 734, 738 n. 3 (5th Cir. 1967) ; Jacobson v. Schaefer, 441 F.2d 127, 130 (7th Cir. 1971) ; Koen v. Long, 302 F.Supp. 1383 (E.D.Mo.1969) ; Bramlett v. Peterson, 307 F.Supp. 1311, 1321-1322 (M.D.Fla.1969) ; Ashenhurst v. Carey, 351 F.Supp. 708 (N.D.Ill.1972) ; Bilick v. Dudley, 356 F.Supp. 945 (S.D.N.Y. 1973). See also Littleton v. Berbling, 468 F.2d 389 (7th Cir. 1972), rev’d on other grounds sub nom. O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).

      . This lack of interference often has been specifically recognized. See Bramlett v. Peterson, 307 F.Supp. 1311, 1322 (M.D.Fla. 1969) ; and Bilick v. Dudley, 356 F.Supp. 945, 953 (S.D.N.Y.1973).

      . See text accompanying notes 2 and 3 supra.

      . See note 1 supra.

      . Parker v. McKeithen, 488 F.2d 553, 557-558 (5th Cir. 1974).
      Assuming that the parties to this federal action are not the same as those in the earlier state litigation or their privies, we note that this court has embraced the modern trend and has moved toward repudiation of the mutuality of estoppel rule. Rachal v. Hill, 435 F.2d 59, 61-62 (5th Cir. 1970). See also Blonder-Tongue Labs v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed,2d 788 (1971) ; James Talcott, Inc. v. Allahabad Bank, Ltd., 444 F.2d 451, 461 (5th Cir. 1971) ; Seguros Tepeyac, S. A., Compañía Mexicana v. Jernigan, 410 F.2d 718 (5th Cir.), cert. denied, 396 U.S. 905, 90 S.Ct. 219, 24 L.Ed.2d 181 (1969).