author: ROSS, Circuit Judge.

text:
    Emil C. TIMMERMAN, Appellant, v. Caspar WEINBERGER, Secretary of H.E.W., Appellee. Kenneth MARKS, Appellant, v. Caspar WEINBERGER, Secretary of H.E.W., Appellee.
    Nos. 74-1434, 74-1435.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 11, 1974.
    Decided Jan. 29, 1975.

      Harry J. Nichols, St. Louis, Mo., for appellants.
    Patrick Glynn, Asst. U. S. Átty., St. Louis, Mo., for appellee.
    Before ROSS and STEPHENSON, Circuit Judges, and SCHATZ, District Judge.

       ALBERT G. SCHATZ, United States District Judge for the District of Nebraska, sitting by designation.

   ROSS, Circuit Judge.

These two cases are separate appeals from judgments of the district court which sustained the denial of disability insurance benefits to the appellants by the Secretary of Health, Education and Welfare. Both appellants applied for period of disability and disability insurance benefits as provided in the Social Security Act §§ 216(i) and 223, 42 U.S.C. §§ 416(i) and 423. These claims were refused by the Social Security Administration. Both appellants fully exhausted their administrative remedies, including hearings before administrative law judges and adverse decisions from the Appeals Council. They then brought actions in the district court under section 205(g) of the Act, 42 U.S.C. § 405(g), seeking judicial review of the Secretary’s determinations regarding their separate claims. These appeals were consolidated for submission to this Court by order dated November 4, 1974. We affirm the judgments in both cases.

General rules applicable.

Under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), this Court may only review the Secretary’s decision regarding disability insurance to determine whether or not it is supported by substantial evidence in the record as a whole. “Substantial evidence,” in turn, has been defined for purposes of the Act as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting from Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)).

The Secretary must decide whether or not the claimant is “disabled” as that term is defined by sections 223(d)(1)(A) and 223(d)(2) of the Act, 42 U.S.C. §§ 423(d)(1)(A) and 423(d)(2), and the court opinions construing that statute.

Our Court has stated that to meet the statutory definition of disability, the claimant must fall within the threefold requirement “(1) that there be a medically determinable physical or mental impairment which can be expected to [result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months], (2) that there be an inability to engage in any substantial gainful activity, and (3) that the inability be by reason of the impairment.” Yawitz v. Weinberger, 498 F.2d 956, 959 (8th Cir. 1974) (quoting from Garrett v. Richardson, 471 F.2d 598, 599-600 (8th Cir. 1972)).

In reviewing the record to ascertain whether there is substantial evidence to support the Secretary’s finding that a claimant has not met this threefold requirement the court should look at four elements of proof:

(1) the objective medical facts; (2) the diagnoses and expert opinions of treating and examining physicians on subsidiary questions of fact; (3) subjective evidence of pain testified to by the claimant and corroborated by family and neighbors; (4) the claimant’s educational background, work history and present age.

Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972).

In the instant cases, as in most, the major area of contention centers around the second prong of the threefold requirement: that there be an inability to engage in any substantial gainful activity. It is clear that the claimant need not be a total “basket case” before the courts find that there is an inability to engage in substantial gainful activity. See, e. g., Yawitz v. Weinberger, supra. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful activity is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Thomas v. Richardson, 371 F.Supp. 362, 364 (S.D.N.Y.1974); Lebron v. Secretary of H.E.W., 370 F.Supp. 403, 407 (D.P.R.1974).

On the other hand, it is clear that “it is not the duty or the burden of the Secretary to find a specific employer and job for the claimant but, instead, some effort and some ingenuity within the range of the claimant’s capacity remains for him to exercise.” Yawitz v. Weinberger, supra, 498 F.2d at 960 (quoting from Garrett v. Richardson, supra, 471 F.2d at 600). As stated in Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, 417 U.S. 933, 94 S.Ct. 2646, 41 L.Ed.2d 237 (1974).

[T]he relevant inquiry is not whether the claimant is able to obtain employment at some substantial activity that exists in the national economy but whether the claimant is able to engage in such activity.

In this connection it should be kept in mind that a “claimant will not be found disabled and entitled to benefits merely because he is unable to perform his former work.” Rolenaitis v. Richardson, 336 F.Supp. 1235, 1237 (E.D.Pa.1972), aff’d, 475 F.2d 1396 (3d Cir. 1973). But the majority of courts have held that once a claimant demonstrates that his impairment is so severe as to preclude him from performing his former work, the burden shifts to the Secretary to prove that there is some other kind of substantial gainful employment which the claimant could perform. Stark v. Weinberger, 497 F.2d 1092, 1097-1098 (7th Cir. 1974).

With these legal standards in mind we turn to an analysis of the records in the two cases at bar.

Timmerman, No. 74-1434.

Emil C. Timmerman was born in 1922. On June 19, 1972, he applied for period of disability and disability insurance benefits alleging that he became unable to work during May 1970, because of nerve compression in the neck, heart trouble and partial paralysis in the hands and arms. The Social Security Administration and the Secretary denied the claim after a hearing was held on March 28, 1973.

Our review of the record reveals that the Secretary’s determination that Timmerman was not disabled prior to December 31, 1972, the date that he last met the special earnings requirement of 42 U.S.C. § 416(i)(3), is supported by substantial evidence. It must be remembered that the claimant has the burden of establishing his claim. Yawitz v. Weinberger, supra, 498 F.2d at 959; Celebrezze v. Bolas, 316 F.2d 498, 500 (8th Cir. 1963). Yet there is no medical evidence in the record from which it can be concluded that Timmerman was unable to engage in any substantial gainful activity prior to the end of 1972. Rather, all that is shown is a series of hospitalizations, each of which may have temporarily disabled him, and a series of ailments to his back which taken together would make it impossible for him to return to his former occupation as a paper handler. There is, however, no indication in the medical record that Timmerman’s impairments were such as to render him incapable of performing the types of jobs mentioned by the vocational expert, Mr. John A. Behrens, who testified that there were jobs in the national economy that Timmerman could perform given his education, vocational experience and residual capabilities, assuming that his impairments did not preclude light or sedentary work. Specifically, Mr. Behrens stated ■ that Timmerman could work as an assembler of electrical equipment or appliances, a packer in the printing, candy or textile industry, a sales clerk in hardware, farm supplies or the nursery business, a service station attendant dispensing gas and oil, or a custodian in a school or other public building.

Marks, No. 74-1435.

Kenneth Marks, born March 11, 1932, filed an application for disability' insurance benefits on December 30, 1970. After his claim was initially rejected by the Social Security Administration, Marks ran the gamut of administrative review, including a hearing held before an administrative law judge on November 16, 1972. Marks’ claim of disability centered around difficulties he has had with his right knee, ankle and foot since he fell at work on July 7, 1969.

It is unnecessary to detail all of the evidence regarding the condition of Marks’ leg. It is clear from a review of the medical reports that Marks recovered well from two operations, and that healing was complete. He has near normal movement in his knee. However, he does continue to have swelling in his right leg and pain in his foot and ankle of indeterminate origin. Most of the medical reports attribute a great deal of Marks’ leg problem to his obesity. Marks is 5 feet IOV2 inches tall and weighs between 325 and 350 pounds.

After a careful review of the record we are satisfied that, while there is conflicting evidence on the issue, there is also substantial evidence to support the conclusion that at the time of the hearing Marks was not disabled for purposes of the Social Security Act. It is for the trier of fact — in this case the Secretary — to resolve conflicts in the evidence, and that resolution must be respected by this Court so long as it is supported by substantial evidence. Celebrezze v. Bolas, supra, 316 F.2d at 500-501.

Marks contends, however, that even if there is substantial evidence to support this conclusion, he still established that he was totally disabled for over twelve months commencing with the date of the first operation on his knee, February 10, 1970, and is, therefore, eligible for period of disability benefits. He bases this argument on the fact that Marks’ employer’s workmen’s compensation insurer paid for temporary total disability for a period of over seventy-nine weeks.

The fact that the workmen’s compensation insurer paid temporary total disability benefits is not binding on the Secretary, who must determine whether a claimant is disabled solely under the standards of the Act. 20 C.F.R. § 404.1525 (1974). See Little v. Richardson, 471 F.2d 715, 716 (9th Cir. 1972); Nelms v. Gardner, 386 F.2d 971, 973-974 (6th Cir. 1967).

The medical evidence relating to this period reveals that Marks was unable to return to his former job as a machinist working at a die casting machine. It does not, however, establish that he was disabled within the definition of the Act. All the physicians who saw him at this time (the year and a half period after his initial operation in February 1970) noted the impairments in his right leg, but none indicated that he could not engage in some form of substantial gainful activity in spite of them. In fact, Dr. Robert E. Funsch, an orthopedic surgeon, after examining Marks on November 10, 1970, concluded that Marks “has been advised to continue with his exercises, continue with his activities and return to work as soon as possible.” In short, while Marks was medically unable to resume his former occupation during the seventy-nine week period, there is no evidence that within a reasonable time after his last operation on July 7, 1970, he could not engage in some substantial gainful activity. He, therefore, did not carry his burden of establishing the claim. Yawitz v. Weinberger, supra, 498 F.2d at 959; Celebrezze v. Bolas, supra, 316 F.2d at 500.

Conclusion

For the reasons heretofore discussed, the district court judgments in both of these appeals are affirmed.

      . Section 223(d) of the Act, 42 U.S.C. § 423(d), provides:
      (d)(1) The term “disability” means—
      (A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months; or
      (2) For purposes of paragraph (1)(A)—
      (A) an individual (except a widow, surviving divorced wife, or widower for purposes of section 402(e) or (f) of this title) shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

      . It is instructive to compare Timmerman’s case with Yawitz v. Weinberger, 498 F.2d 956 (8th Cir. 1974). In Yawitz this Court held that the pain associated with chronic migraine headaches did create a disability under the Act. However, in that case there was medical testimony from the claimant’s personal physician to the effect that whenever a headache struck, the claimant’s work would be “erratic.” Also in Yawitz the claimant had attempted gainful employment over a number of years and had found that the frequency and intensity of the headaches was increasing to the point where he simply could not function in any work situation. In the instant case, on the other hand, there is no medical evidence whatsoever suggesting that Timmerman’s back pain would affect his work. And Timmerman himself has made no attempt to function in any gainful employment since he suffered the sprained shoulder in 1970.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Joseph JEFFERSON, Jr., Appellant.
    No. 74-1469.
    United States Court of Appeals, Fourth Circuit.
    Submitted Nov. 20, 1974.
    Decided Jan. 20, 1975.
    Andrew W. Wood, Richmond, Va., on brief, for appellant.
    David H. Hopkins, U. S. Atty., and Charles L. Beard, Asst. U. S. Atty., on brief for appellee.
    Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and WINTER, Circuit Judge.
   PER CURIAM:

This appeal raises the question whether, after determining that its original sentence was invalid, the district court properly resentenced the appellant. Joseph Jefferson, Jr., was initially sentenced to two years imprisonment for illegal possession of a firearm after having been convicted of a felony, a violation of 18 U.S.C. App. § 1202(a). After his conviction was affirmed on appeal, Jefferson submitted a motion for correction of sentence pursuant to 28 U.S.C. § 2255. In the petition, he alleged that at least two of his three prior felony convictions considered by the sentencing judge were illegal. The district court, considering that the petition had merit under United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), scheduled the case for a hearing. The transcript of that hearing reflects that the district judge found that the invalid convictions “should not have been considered by the Court.” The judge thereupon proceeded to resentence Jefferson., with the statement that “I am treating them [the challenged convictions] as being invalid for the purpose of sentencing.” A new sentence of two years was imposed, with the qualification that parole eligibility was to be determined pursuant to 18 U.S.C. § 4208(a)(2).

Jefferson contends that the lower court erred by not reducing the length of his sentence. We disagree. We find nothing in Tucker or Brown v. United States, 4 Cir., 483 F.2d 116, which requires that a new sentence be more lenient than the sentence vacated. All that is mandated is that the sentence be reevaluated without consideration given to the unconstitutionally obtained prior convictions. Here, the district court specifically disclaimed any reliance on Jefferson’s previous convictions when it imposed the new sentence. We conclude, therefore, that Tucker and Brown were given proper effect.

Accordingly, the sentence imposed is upheld.


text:
    STATE OF NEBRASKA, DEPARTMENT OF ROADS, Appellant, v. Norbert T. TIEMANN, Federal Highway Administrator, Appellee.
    No. 74-1717.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 9, 1975.
    Decided Jan. 28, 1975.
    Warren D. Lichty, Jr., Asst. Atty. Gen., Lincoln, Neb., for appellant.
    William K. Schaphorst, U. S. Atty., Stephen L. Muehlberg, Asst. U. S. Atty., Omaha, Neb., for appellee.

      Before GIBSON, Chief Judge, and HEANEY and ROSS, Circuit Judges.
   ROSS, Circuit Judge.

The State of Nebraska appeals, pursuant to 28 U.S.C. § 1292(a)(1), from the denial of its request for' a temporary restraining order and preliminary injunction enjoining Norbert T. Tiemann, the Federal Highway Administrator, from withholding approval of highway projects for which the state seeks federal funds under the Federal-Aid Highway Act, 23 U.S.C. §§ 101 et seq. We affirm.

In early 1972 the Federal Highway Administrator approved, on an experimental basis, the erection of certain tourist attraction signs by the State of Nebraska within the right-of-way of the interstate highway system in the state. It was stipulated that these signs, which did not conform to guidelines promulgated by the Highway Advisory Board, would remain in place only during the 1972 tourist season. In 1973 Nebraska requested that the program be continued on a permanent basis, but this request was denied by the Administrator. However, Nebraska was granted two extensions of the removal date to January 1, 1974, and then to June 1, 1974. Nebraska’s requests for hearings before the Advisory Board and the Administrator were denied; and when it appeared after June 1, 1974, that the signs were still in place the Administrator notified the state that he would “withhold approval of all primary system Federal-aid highway projects ... in Nebraska” until the tourist attraction signs were removed.

Nebraska then commenced litigation asking for declaratory and injunctive relief to keep the Administrator from withholding funds. Additionally, it sought the temporary relief which is the subject of this appeal. After that relief was denied, it removed the signs.

The scope of review of a district court’s order denying preliminary injunctive relief is very limited, and this Court cannot reverse the order unless there has been an abuse of discretion. Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 88 L.Ed. 834 (1944); Wounded Knee Legal Defense/Offense Committee v. FBI, 507 F.2d 1281, 1288 (8th Cir., 1974).

The standards for determining whether such preliminary injunctive relief should be granted have been set out in Minnesota Bearing Co. v. White Motor Corp., 470 F.2d 1323, 1326 (8th Cir. 1973), wherein we said:

In order to justify the issuance of a preliminary injunction by the trial court, the movant has the burden of showing:
(1) substantial probability of success at trial by the moving party, and
(2) irreparable injury to the moving party absent such issuance.

(3) In an unpublished memorandum accompanying the order denying the temporary restraining order and preliminary injunction Chief Judge Warren K. Urbom carefully reviewed the facts and the applicable law and found that Nebraska was not likely to prevail on the merits. We agree with Judge Urbom’s analysis and affirm on the basis of his well reasoned memorandum opinion. Clearly, there was no abuse of discretion.

Section 109(d) of the Federal-Aid Highway Act, 23 U.S.C. § 109(d), reads as follows:

On any highway project in which Federal funds hereafter participate, or on any such project constructed since December 20, 1944, the location, form and character of informational, regulatory and warning signs, curb and pavement or other markings, and traffic signals installed or placed by any public authority or other agency, shall be subject to the approval of the State highway department with the concurrence of the Secretary, who is directed to concur only in such installations as will promote the safe and efficient utilization of the highways. (Emphasis supplied.)

Section 315 of the Act, 23 U.S.C. § 315, specifically gives the Secretary of Transportation authority “to prescribe and promulgate all needful rules and regulations for the carrying out of the provisions of this title.” One of the regulations so promulgated under this authority is 23 C.F.R. § 1.36 (1974), which provides that if the Administrator determines that a state is not in compliance with federal laws or regulations with regard to highway projects, he may “withhold approval of further projects in the State.”

Here the Administrator has determined that Nebraska is not in compliance with section 109(d) because it has erected and maintained informational signs in the interstate right-of-way without the “concurrence of the Secretary.” This concurrence has been withheld because of the Administrator’s finding that these signs will not “promote the safe and efficient utilization” of the interstate highway in Nebraska.

When this case is tried on the merits the state will have the burden of showing that this latter finding is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Administrative Procedures Act, 5 U.S.C. § 706(2)(A). See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413-414, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); South Dakota v. Volpe, 353 F.Supp. 335, 339 (D.S.D.1973). If the Administrator’s determination of this factual question was not arbitrary or capricious, then his action in' withholding project approval was mandated by section 315 and the regulations promulgated thereunder.

Nebraska’s argument, based on South Carolina State Highway Department v. Barnwell Bros., 303 U.S. 177, 187, 58 S.Ct. 510, 82 L.Ed. 734 (1938), that the state owns the highway and may maintain it as it sees fit simply misses the point of this litigation. While the state is constitutionally free to operate its own highway system, the federal government is not bound constitutionally or statutorily to grant federal highway funds to states which do not operate their systems in accordance with federal guidelines. See King v. Smith, 392 U.S. 309, 333 n.34, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Connecticut State Department of Public Welfare v. Department of H.E.W., Social & Rehabilitation Service, 448 F.2d 209, 215 (2d Cir. 1971).

The order of the district court denying a temporary restraining order and preliminary injunction is affirmed.


author: MURRAH, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Chester Clarence WHITE, Defendant-Appellant.
    No. 74-1283.
    United States Court of Appeals, Tenth Circuit.
    Argued Nov. 12, 1974.
    Decided Jan. 31, 1975.

      J. Terry Wiggens, Asst. U. S. Atty., Denver, Colo. (James L. Treece, U. S. Atty. and Pepe J. Mendez, Denver, Colo., on the brief), for plaintiff-appellee.
    Philip M. Jones, Denver, Colo., for defendant-appellant.
    Before MURRAH, SETH and HOLLOWAY, Circuit Judges.
   MURRAH, Circuit Judge.

The appellant White was convicted on an indictment charging that he “did steal, take and abstract from and out of the mail, and mail receptacle, a letter and remove from such letter articles and things contained therein, that is [five $5.00 Federal Reserve Notes] .... in violation of Title 18, United States Code, Section 1708.” There was direct evidence that federal agents attached a letter to a clothespin on the outside of a mailbox at an apartment house in Denver, Colorado. The clothespin was hooked or fastened to the mailbox lid, and the letter was clipped to the clothespin. The letter contained the notation on the envelope: “Not here. Please forward.” While the mailbox was under surveillance, White took the letter from the clothespin attachment and carried it to his own apartment. He later returned and replaced the letter as originally attached and was arrested by the federal agents as he left the apartment house. There was evidence from which the jury could well infer that while the letter was in White’s possession he removed the contents, $25 in Federal Reserve Notes.

The evidence shows without dispute that the taking was from the clothespin outside the mailbox. White argues that the evidence is insufficient to convict under the statute and indictment because they require a taking from inside the mailbox; that (1) the words “from” and “out of” each should be taken to mean “from inside,” and (2) the term “mail receptacle” includes only the mailbox, not the clothespin. Consistently, with this theory, he requested the trial court to- instruct the jury: “If the letter was taken from the outside of the mailbox and not from inside the mailbox, you must find the Defendant not guilty.” Apparently rejecting the theory of the requested instructions, the court instructed the jury in the broader terms of the statute, to the effect that to convict the defendant of the crime charged, they must find from the evidence beyond a reasonable doubt that White took or abstracted the letter “from or out of a mail receptacle.” The court did not undertake to define the critical statutory terms “from or out of a mail receptacle” for the benefit of the jury. But we read the instruction as necessarily telling the jury that the clothespin attached to the mailbox was part of a “mail receptacle” within the meaning of the statute and that a taking therefrom was a violation of the statute as invoked in the indictment. Otherwise, the court should have directed a verdict. We think that this construction of the critical terms of the statute was proper and that the evidence was sufficient to convict on the charge in the indictment.

To support his construction of the critical words, White relies heavily on United States v. Lophansky, 232 F. 297 (E.D.Pa.1916), where the court dismissed a prosecution for mail theft. Applying the rule of strict construction of penal statutes, the court held that taking a letter which had been placed on top of a letter box does not offend the statutory prohibition against taking “from or out of” an “authorized depository” for mail matter.

We, of course, agree that this statute, as all criminal statutes, must be construed strictly against the government. We do not think, however, the ruling in that case should dictate the law of this case. We think there is a significant difference in the taking of a letter from on top of a letter box, as in Lophansky, and the taking of a letter from a clothespin attached to a letter box or mail receptacle, as here. We have found no other case since Lophansky interpreting the critical words involved here, but we are convinced by the reasoning of the more recent decisions, analyzing parallel terms in the statute and regulations, that the ruling in Lophansky should not be perpetuated or extended beyond the narrow confines of its facts.

By insisting that the words “from and out of a mail receptacle” should be taken to mean “from inside a mailbox or mail receptacle,” White would have us restrict the “mail receptacle” category to include only a mail container or holder which has an enclosed interior. We decline to do so, in view of the manifest legislative intent to protect the mails broadly and the comprehensive definition of the terms of the statute in the implementing regulations.

In Rosen v. United States, 245 U.S. 467, 38 S.Ct. 148, 62 L.Ed. 406 (1918) (a contemporary of Lophansky), the Supreme Court sustained the power of the Postal Service to make regulations to supplement the criminal statute by supplying the detail for the undefined terms of the statute. The applicable regulations have not materially changed since Rosen, and they now provide at 39 C.F.R. 151.1(a):

§ 151.1 Private mail receptacles.
(a) Designation as authorized depository. Every letter box or other receptacle intended or used for the receipt or delivery of mail on any city delivery route ... or other mail route is designated and authorized depository for mail within the meaning of 18 U.S.C. ... § 1708.

When the same statute came to the Fifth Circuit in Smith v. United States, 343 F.2d 539 (5th Cir. 1965), the question was whether an unlocked hotel mailbox used for incoming mail only was a “letterbox ... or other authorized depository for mail matter” within the statute. Judge Wisdom traced the long and colorful history of criminal statutes for the protection of the postal system and the need for “judicial appraisal of the. realities of delivering and receiving mail in a modern urban environment.” Id. at 542. Relying upon the regulations applicable then and now, he noted that such regulations plainly include “private, unlocked mailboxes, in homes and business establishments, used for delivery but not primarily for collection of mail.” Id. at 542-543. While the question there was doubtless more easily resolved than ours, the reasoning is conducive to a broad and comprehensive definition of a letter box or mail receptacle. See also United States v. Davis, 461 F.2d 83 (5th Cir. 1972); United States v. Holley, 463 F.2d 634 (5th Cir. 1972).

More recently, in United States v. Lopez, 457 F.2d 396 (2d Cir. 1972) the court was concerned with the statutory terms “mail route” and “mail” and construed them in their “broadest sense.” Id. at 399. Although each of these cases dealt with a different wording of the same statute, each describing a crime unto itself, they are parallel to the wording involved here. And they do serve to demonstrate, as Judge Feinberg in Lopez put it, that the statute “was broadly conceived to assure the proper functioning of the postal system,” and, as Judge Goldberg in Holley commented, that courts have “often recognized the need for both expansive and realistic judicial interpretation of the federal mail theft statutes”. United States v. Lopez, supra, at 398. United States v. Holley, supra, at 638.

When taken out of context, the terms “mailbox” or “mail receptacle” would not ordinarily be understood by the man in the street to include a clothespin. But here, we think the word takes on special meaning as a term of art. As we have seen, the clothespin was attached to a mail receptacle, the mailbox. A postal inspector testified that at this residence all outgoing letters were mailed by attaching them to the clothespin and that such a practice is common and that postal carriers are required to pick up such letters. The clothespin was thus intended and used for the delivery or receipt of mail on this mail route, as contemplated by the applicable regulations. Viewed in this light, it is plain, we think, that taking a letter from the grip of the clothespin is taking “from and out of the mail, and mail receptacle,” as those statutory terms are invoked in the indictment.

The judgment is affirmed.

      . 18 U.S.C. § 1708 in pertinent part reads:
      “Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein; . . ..” shall be punished as provided in the Act.

      . No point is made of the discrepancy between the disjunctive in the statute and instruction (“from or out of”) and the conjunctive in the indictment (“from and out of”). The parties made no legal distinction in the uses of these terms and apparently treated them interchangeably. For the purposes of this appeal, we shall do likewise.

      . There is no assertion, as ground for this appeal, that what was taken by White was not a “letter” under § 1708 because used as a decoy letter by federal agents. And see Scott v. United States, 172 U.S. 343, 19 S.Ct. 209, 43 L.Ed. 471 (1899); United States v. Kent, 449 F.2d 751 (5th Cir. 1971); Kelley v. United States, 166 F.2d 343 (9th Cir. 1948).


author: THOMSEN, Senior District Judge.

text:
    M. W. ZACK METAL COMPANY, Appellant, v. INTERNATIONAL NAVIGATION CORPORATION, Appellee.
    No. 74-1544.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 5, 1974.
    Decided Jan. 16, 1975.
    As Modified on Denial of Rehearing March 10, 1975.

      Anthony B. Cataldo, New York City (Jett, Berkley, Furr & Heilig, Norfolk, Va., on brief), for appellant.
    John W. Winston, Norfolk, Va. (Sea-well, McCoy, Winston & Dalton, Norfolk, Va., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, BUTZNER, Circuit Judge, and THOMSEN, Senior District Judge.
   THOMSEN, Senior District Judge.

M. W. Zack Metal Company (Zack) appeals from an order of the district court dismissing an action filed therein by Zack against International Navigation Corporation, a Liberian corporation (International). Zack had designated its action as an admiralty and maritime claim within the meaning of Rule 9(h), F.R. Civ.P., and caused the vessel Virtus, owned by International, to be attached.

International chartered its vessel Severn River to Contam Linie Hansen (the charterer), a German partnership, for a voyage in 1960 from Antwerp, Belgium, to New York. The charterer solicited cargo to be transported on board the Severn River and issued its bills of lading for such cargo signed by the vessel’s master. Zack shipped with the charterer 93 coils of hot-rolled steel, for which a clean bill of lading was issued, but which were found to be damaged when they were discharged in New York.

In 1961 Zack instituted a suit in a court in Hamburg, Germany, where the charterer resided, against the charterer, the individual partners of the charterer, and International. In 1966 that court found the charterer and its partners liable for the damage to Zack’s steel and entered a money judgment for the full amount of the damage in favor of Zack against the charterer and its partners. Zack’s claim against International was postponed for later decision.

In 1971 the German court rendered a further decision holding, according to the agreed translation, that “personal liability of the ship’s owner does not exist”, but that the “claims because of cargo damages are secured through a ship’s creditor’s right, even if — as in the present case — the carrier is not at the same time the ship’s owner”. The court entered a judgment that International “is convicted to submit to execution being levies on the S. S. Severn River” of US $64,018.83, plus interest and part of Zack’s expenses. The affidavits of German lawyers submitted by Zack and International respectively, as well as the agreed translation of the judgment itself, show that the judgment was essentially a judgment in rem against the Severn River. All of the parties, including Zack, appealed to a higher German court, which under the German practice may take additional testimony and review both the facts and the law.

In early 1972 Zack learned that another vessel owned by International, the Virtus, was to arrive at Norfolk. Although the appellate proceedings in Germany were and are still pending, Zack commenced the present suit against International in the Eastern District of Virginia, and caused an attachment to be issued against the Virtus. International appeared specially and moved to quash the attachment and dismiss the suit. The Virtus was released after International agreed to post security. After two hearings, the district court dismissed the suit, with a full opinion.

Zack has declared on the German judgment, which furnishes no basis for an in personam claim against the owner or for the attachment of the Virtus.

The judgment of the trial court in Hamburg is under review on appeal. It may be that the appellate court will impose some other liability upon the owner, but it is plain that the trial court limited the owner’s liability to its interest in the Severn River. Essentially and substantively, it is an in rem judgment against the Severn River, imposing no in personam liability upon its owner, and furnishing no basis for the assertion of an in personam liability of the owner or the attachment of any other vessel owned by International. The attachment, of course, may not be based upon the speculative possibility that the reviewing court in Germany may give Zack greater rights against the owner than the trial court did.

The German judgment did not justify the suit in the Eastern District of Virginia or the attachment of the Virtus. The decision of the district judge dismissing that suit will be affirmed.

We have treated the cause of action as being founded solely on the German judgment. Nothing we have done or said should be construed as intimating any opinion upon any cause of action Zack may have against any person, firm or corporation, including International, jmder the Carriage of Goods by Sea Act, 46 U.S.C. § 1300 et seq.

Affirmed.


author: JAMES M. CARTER, Circuit Judge. ZIRPOLI, District Judge

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Dennis George HOLLAND, Defendant-Appellee.
    No. 74-2360.
    United States Court of Appeals, Ninth Circuit.
    Jan. 24, 1975.
    Rehearing Denied March 17, 1975.
    Certiorari Denied June 16, 1975.
    See 95 S.Ct. 2634.

      Sidney I. Lezak, U. S. Atty., Portland, Or., for plaintiff-appellant.
    Howard R. Lonergan, Portland, Or., for defendant-appellee.
    Before KOELSCH and CARTER, Circuit Judges, and ZIRPOLI, District Judge.

       Honorable Alfonso J. Zirpoli, United States District Judge, Northern District of California, sitting by designation.

   OPINION

JAMES M. CARTER, Circuit Judge.

The Government appeals from the judgment of the district court, granting defendant Dennis George Holland’s motion to suppress evidence obtained pursuant to an investigatory stop by officers of the Coos County, Oregon Sheriff’s Office. The court held that the officers “lacked sufficient specific and articulable facts to create a founded suspicion.” We reverse.

The evidence at the hearing on the motion to suppress, which is not in dispute, indicated that on the evening of January 19, 1974, Sheriff’s Office deputies, pursuant to a search warrant, discovered numerous guns, narcotics paraphernalia, and a batch of methamphetamine in the process of “being cooked” in a small frame house located on a narrow, rutted, dirt road in a rural area near Bandon, Oregon. They also searched for, but did not find, a white male fugitive, described as armed and dangerous and believed to be in the immediate area. An officer was left at the house to investigate and preserve the evidence until morning.

At approximately 1:00 a. m. on January 20, 1974, Deputy Erhardt, in uniform and driving a marked police car, met Detective Kaufman on the dirt road on which the house, then being searched, was located. Ten to fifteen minutes later, they observed a 1961 Ford Falcon travelling toward them at five to eight miles per hour.

The slow progress of the vehicle caused the officers to believe that it was unfamiliar with the area and looking for a particular address. As the vehicle passed the officers, the occupants (a male and a female) stared at the officers for what Deputy Erhardt testified had seemed to him to be an unusually long time. They had observed only one other vehicle on the road since earlier that evening and that vehicle was not stopped because it appeared to contain a family (man, woman, and children).

At the hearing, Detective Kaufman testified that because of the time of night, the extremely unusual situation at the nearby house still being searched, and the fact that the fugitive was still unaccounted for, he told Deputy Erhardt to check out the car if it stayed in the area. Deputy Erhardt testified that in his experience it was unusual for people to be searching out an address to pay a social visit in that rural area at that time of night.

After the defendant’s vehicle reached a dead end, it slowly re-approached the officers, turned onto the intersecting dirt road on which the house being searched was located, and then further slowed to a “walking speed.”

There were only three houses on that dirt road, one on either side of the house being searched, each some distance apart. Although the officers thought that the vehicle was probably heading for the house being searched and that the occupants of the car might have been stalling to see if the officers would leave the area, they continued only to observe the defendant’s vehicle until it passed the first house on the road and was less than 150 feet from the house being searched — the next house it would reach.

Deputy Erhardt then stopped the vehicle and asked the occupants for identification. After they both produced Oregon driver’s licenses, he asked to see the vehicle registration. When they could not find it, Deputy Erhardt then asked the driver (the defendant) if he could look in the car and the defendant replied, “Sure. Go ahead.” Upon leaning into the car, Deputy Erhardt observed a sawed-off rifle stock partly covered by a cloth lying between the front bucket seats of the car. It is this shotgun which forms the basis for the charges against the defendant, and which was suppressed by the district court.

In Wilson v. Porter, 361 F.2d 412 (9 Cir. 1966), this court noted that

“due regard for the practical necessities of effective law enforcement requires that the validity of brief, informal detention be recognized whenever it appears from the totality of the circumstances that the detaining officers could have had reasonable grounds for their action. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.” Id. at 415 (emphasis added).

Purporting to apply this standard, the district court held that the stop of the defendant’s car just prior to its reaching the house being searched was an unreasonable seizure because the defendant’s conduct was “consistent with innocent behavior” in that the defendant may have intended to drive past the house in question to the other house not connected with criminal activity.

In so holding, however, the court misapplied the language from Porter, supra, by failing to give adequate consideration to the language italicized. The proper test is not whether the conduct of the car itself was “consistent with innocent behavior,” but rather whether the officers were reasonable, under all of the circumstances, in believing that the car or its occupants, were involved or about to become involved in criminal activity. See United States v. Ward, 488 F.2d 162, 169 (9 Cir. 1973) (en banc).

Clearly, the officers were not required to rule out all possibility of innocent behavior before initiating a brief stop and request for identification. The test is founded suspicion, not probable cause. Even if it was equally probable that the vehicle or its occupants were innocent of any wrongdoing, police officers must be permitted to act before their reasonable belief is verified by escape or fruition of the harm it was their duty to prevent. “A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972).

This court, in Arnold v. United States, 382 F.2d 4 (9 Cir. 1967), indicated the factors to be considered in determining the validity of investigatory stops:

“The reasonableness of such on-the-scene detention is determined by all the circumstances. The seriousness of the offense, the degree of likelihood that the person detained may have witnessed or been involved in the offense, the proximity in time and space from the scene of the crime, the urgency of the occasion, the nature of the detention and its extent, the means and procedures employed by the officer, the presence of any circumstances suggesting harassment or a deliberate effort to avoid the necessity of securing a warrant — these and other factors will be relevant in balancing the need for limited on-the-scene detention and inquiry against the inconvenience and indignity to the individual detained.” Id. at 7.

In the present case, the seriousness of the offenses discovered and likely to take place included involvement with an illegal drug factory (still “cooking” when the officers arrived at the house), an arsenal of stolen firearms, and an armed fugitive, all creating a risk to the personal safety of the searching officers still in the house. The officers knew that there was a male fugitive in the area who was connected with the house, and from the movements of the defendant’s vehicle they reasonably believed that it had at least a 50% likelihood of visiting and therefore becoming unavoidably involved in the activity going on at the house being searched. The car was only 150 feet from the house at the time it was stopped, on a lightly-travelled dirt road at 1:00 a. m., and the occupants had stared at the officers for what they believed to be an unusually long time.

Further, there were no circumstances suggesting harassment or a deliberate effort to avoid the necessity of securing a warrant. The officers waited until the car had driven up and down the street, had passed the first of the three houses on the dirt road, and was about to reach the house being searched, before initiating the stop.

The nature of the detention and the means and procedures employed by the officers were also reasonable. When stopped, the defendant’s car was travel-ling at a very slow (“walking”) speed, and the occupants of the vehicle were only asked for identification. The initial stop involved no public embarrassment and no physical contact. There was no less intrusive means available to determine the identity of the occupants.

Under all of the circumstances, then, including the risk to those officers still in the house and the very limited nature of the initial stop, that stop was both reasonable and supported by a founded suspicion. “[W]e need not look for a reconstructed, after-the-fact explanation of what may have been nothing more at the time of the occurrence than the instinctive reaction of one trained in the prevention of crime. . . . We cannot say that the circumstances of a car making inordinately slow progress along a street in the small hours of the morning could not reasonably have aroused the suspicions of a local officer alert to the unusual within his beat, and lead him to investigate.” Wilson v. Porter, 361 F.2d at 415. See United States v. Jaime-Barrios, 494 F.2d 455, 458 (9 Cir. 1974).

The decision of the district court is reversed.

ZIRPOLI, District Judge

(dissenting):

I respectfully dissent. The trial judge found that “the officers lacked sufficient specific and articulate facts to create a founded suspicion.” (Emphasis added). Although I might have found differently had I been the trial judge, I may not now substitute my judgment for his and absent a showing of clear error, and I find none, such determination of the trial judge should be conclusive. I would affirm.

      . In Frye v. United States, 315 F.2d 491, 494 (9 Cir.), cert. denied 375 U.S. 849, 84 S.Ct. 104, 11 L.Ed.2d 76 (1963), this court noted that local peace officers have a duty to be alert for suspicious circumstances and investigate further whenever these circumstances indicate that the officers should do so.

      . We note that under Oregon law, license and registration materials are required to be produced upon demand. See Oregon Rev.Stat. §§ 481.230(4) and 482.300(2).


author: FRED M. TAYLOR, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Daniel John CELESTINE, Defendant-Appellant.
    No. 74-1801.
    United States Court of Appeals, Ninth Circuit.
    Jan. 2, 1975.

      Lauren W. Dobbs, Yakima, Wash, (argued), for defendant-appellant.
    Robert S. Linnell, Asst. U. S. Atty. (argued), Spokane, Wash., for plaintiffappellee.
    Before MERRILL and HUFSTEDLER, Circuit Judges, and TAYLOR, District Judge.

       Of the District of Idaho, sitting by designation.

   OPINION

FRED M. TAYLOR, District Judge:

Daniel Celestine, an Indian, has appealed from his conviction on one count of second degree murder within the Yakima Indian Reservation in violation of Title 18, U.S.C. § 1153. Following his jüry trial, appellant’s motions for judgment of Acquittal, Arrest of Judgment, or for a New Trial were denied by the trial court and the appellant, then eighteen years of age, was sentenced under the Federal Youth Correction Act (18 U.S.C. § 5005 et seq.) to imprisonment of not more than ten years.

The record shows that Rita Sweowaht, a 20 year old Indian girl, was with the appellant in the early morning of July 5, 1973. The two were heard arguing and approximately an hour later the appellant was seen with blood on his shirt, shoes and hands. Eleven days later, the girl was found dead in an Indian sweat house (a partially underground structure in which the Indians took sauna baths).

In a signed statement, Celestine admitted he was with the deceased on July 5 at a party; that he was intoxicated at the time; that he followed Miss Sweowaht when she left the party and that when she resisted his sexual advances, he beat her with his fists. The appellant stated that the next thing he remembered was that the girl had no clothes on and he was kicking a stick into her vagina. Celestine then went back to the party and fell asleep. On awakening, he went back to the victim and, not knowing whether she was alive or dead, dragged her to the sweat house and placed her inside. Testimony at the trial established that a stake was protruding three to four inches from the victim’s vagina when she was found. Several days after the autopsy, a stake 11% inches long and one inch square was removed from the body by a funeral director.

The coroner who performed the autopsy was unsure of the cause of death at the time he examined the body. He did note that the fat around the heart was distended with gas and the heart itself was full of gas bubbles. The prosecution posed a hypothetical question to the coroner requesting his opinion as to the result of forcing a one inch square stake eight to eight and one-half inches into the vaginal tract of a 20 year old woman. Over defendant’s objection, the coroner testified that the stake would have penetrated the wall of the vagina and the lower intestine behind it causing infection and allowing bacteria to enter the blood stream (septicemia). The coroner further stated that if these bacteria were gas bacilli, gas would form in the organs, resulting in the death of the victim.

The coroner did not see the stake in the body at the time he performed his autopsy. However, he did note that the intestines were collapsed, but did not observe any rupture of the intestines. The body was rather badly decomposed and maggots infested the interior thereof which obscured the coroner’s view. The coroner, who did not know the body was inside a sweat house, fixed the time of death from three to five days prior to the time the body was found. He based his opinion on the deterioration of the body and maximum temperatures of over 100° Fahrenheit during early July.

Appellant’s initial contention is that as a matter of law the evidence was not sufficient to support a finding that Celestine caused the death of Rita Sweowaht, nor was the evidence sufficient to show that the appellant acted with malice aforethought. After carefully reviewing all the evidence produced at the trial, considered in the light most favorable to the government, together with the reasonable inferences which may be drawn therefrom, we are convinced that there was an abundance of evidence from which the jury could find that the appellant caused the death of the girl. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Munns, 457 F.2d 271 (9th Cir. 1972), cert. den. 409 U.S. 871, 93 S.Ct. 199, 34 L.Ed.2d 121 (1972); Kaplan v. United States, 329 F.2d 561 (9th Cir. 1964). Furthermore, the jury could reasonably find that appellant acted with malice aforethought. Malice aforethought is the condition of a person’s mind. Since no one can look into the mind of another, the only way to decide what is in his mind is to infer it from his acts and that inference is one of fact for the jury. Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980 (1896). Malice aforethought does not mean simply hatred or ill will, but also embraces the state of mind with which one intentionally commits a wrongful act without legal justification or excuse. It may be inferred from circumstances which show “a wanton and depraved spirit, a mind bent on evil mischief without regard to its consequences.” Government of Virgin Islands v. Lake, 362 F.2d 770 (3rd Cir. 1966); United States v. Hinkle, 159 U.S.App.D.C. 334, 487 F.2d 1205 (1973). The act attributed to the appellant certainly permits, if it does not require, the conclusion that the homicide was accompanied by a callous and wanton disregard of human life.

.The appellant next argues that the jury instruction given on implied malice was reversible error. A circumstance which a jury may properly consider in deciding whether a defendant acted with malice is whether he used a weapon or other instrument upon his victim in such a manner as may be expected naturally and probably to cause death. Government of Virgin Islands v. Lake, supra. Appellant recognizes the general rule of implied malice, but argues that the failure to use and define the term “deadly weapon” in the instruction given and the failure to state that the deadly weapon caused the death of the deceased is reversible error. We do not agree. Considering the court’s instructions, as a whole, in regard to the element of malice aforethought, and in light of the strong and unequivocal evidence of malice, it was not reversible error for the court to give the instruction.

Although the trial court instructed the jury on the crimes of second degree murder and voluntary manslaughter, the appellant contends the court erred in refusing to give his requested instruction on involuntary manslaughter. Rule 31(c) of the F.R.Cr.P. allows a defendant to be found guilty of an offense necessarily included in the offense charged. Manslaughter is recognized as a lesser included offense within second degree murder. Stevenson v. United States, supra; Belton v. United States, 127 U.S.App.D.C. 201, 382 F.2d 150 (1967). However, in order for a defendant to be entitled to an instruction as to a lesser included offense, there must be evidence in the record which would enable a jury to rationally find the existence of all the elements of the lesser included offense. Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); United States v. Comer, 137 U.S.App.D.C. 214, 421 F.2d 1149 (1970); Simon v. United States, 137 U.S.App.D.C. 308, 424 F.2d 796. After a thorough reading of the record, we are unable to discern any reasonable set of circumstances from which the jury could return a verdict of involuntary manslaughter. Even assuming, as appellant argues, that the jury might find that the girl was alive at the time Celestine placed her in the sweat house and that his only wrongful act was hiding the victim and not seeking medical aid for her, this in and of itself would constitute an act in wanton and callous disregard of human life. The element of malice would thus be present, eliminating the necessity for an involuntary manslaughter instruction.

Appellant next argues that the hypothetical question asked the coroner should not have been permitted by the trial court. The coroner, however, gave his expert opinion in regard to the cause of death based only on facts established by his own observations and the established facts in evidence. It was not error to permit the expert’s opinion based on facts in evidence. United States v. Carlson, 423 F.2d 431 (9th Cir. 1970), cert. den. 400 U.S. 847, 91 S.Ct. 94, 27 L.Ed.2d 84 (1970); Permanente Steamship Corporation v. Martinez, 369 F.2d 297 (9th Cir. 1966).

Appellant’s final contention is that the trial court committed reversible error in failing to give his requested instruction on the joint operation of mens rea and actus rea. The record is devoid of any objection by the appellant in regard to the failure of the court to give this instruction and, absent plain error, he is foreclosed from raising this issue for the first time on appeal. Rule 30, 52(b) F.R.Cr.P.; United States v. Johnson, 463 F.2d 216 (9th Cir. 1972), cert. den. 409 U.S. 1028, 93 S.Ct. 472, 34 L.Ed.2d 322; White v. United States, 394 F.2d 49 (9th Cir. 1968). After fully considering the evidence and all of the trial court’s instructions, we find no reversible error.

Accordingly, the conviction of appellant should be, and the same hereby is, affirmed.

      . Title 18, U.S.C. § 1153 provides:
      “Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, . . . within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.”
      Title 18, U.S.C. § 1111 provides:
      “(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.
      “Any other murder is murder in the second degree."

      . The court instructed:
      “The next instruction relates to the stick. If it is shown that the defendant used a stick on the body of the deceased in a manner likely to cause her death, then you may find from the use of such stick, in the absence of explanatory or mitigating circumstances the existence of malice, which is an essential element of the offense.”

      . The trial court instructed:
      “Now this next instruction defines malice aforethought, that term that you have heard quite often. Malice aforethought means an intent at the time of a killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life. * * * In determining whether Rita Sweowat [sic] was unlawfully killed with malice aforethought, the jury should consider all the facts and circumstances preceding, surrounding, and following the killing, as shown by the evidence in the case, which tend to shed light upon the condition of mind and heart of the killer before and at the time of the deed. No fact, no matter how small, no circumstance, no matter how trivial, which bears upon the question of malice aforethought should escape careful consideration by the jury.”

      . Title 18, U.S.C. § 1112 provides:
      “(a) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:
      Voluntary — Upon a sudden quarrel or heat of passion.
      Involuntary — In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.”

      . The court gave a number of instructions bearing on joint operation of mens rea and actus rea. Among them were:
      “ * * * Malice aforethought means an intent at the time of a killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life. But malice aforethought does not necessarily imply any ill will, spite, hatred, toward the individual killed. Malice, as the term is used here, is but another name for a certain state or condition of a person’s mind or heart. Since no one can look into the heart or mind of another, the only means of determining whether or not malice existed at the time of a killing is by inference drawn from surrounding facts and circumstances as shown by the evidence in the case. ...”
      “ * * * Specific intent is a term which means more than the general intent to commit the act, and to establish specific intent the government must prove that the defendant knowingly did an act which the law forbids, purposely intending to violate the law.”
      “ * * * Expert testimony on the issue of a defendant’s mental condition is not binding on the jury, you should however consider it together with all the other evidence in the case in determining the defendant’s mental condition at the time of the alleged commission of the alleged crime charged in the indictment.”
      “Although intoxication or drunkenness alone will never provide a legal excuse for the commission of a crime, the fact that a person may have been intoxicated at the time of the commission of a crime may negate the existence of a specific intent, so evidence that a defendant acted or failed to act while in a state of intoxication is to be considered in determining whether or not the defendant acted or failed to act with specific intent as charged.”


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. EUCLID NATIONAL BANK, Defendant-Appellant.
    No. 74-1014.
    United States Court of Appeals, Sixth Circuit.
    Feb. 12, 1975.

      Karl D. Kammer, David Ralph Hertz, Cleveland, Ohio, for defendant-appellant.
    Frederick M. Coleman, U. S. Atty., Robert R. Bauer, Asst. U. S. Atty., Cleveland, Ohio, Scott P. Crampton, Meyer Rothwacks, Chief, Appellate Section, Stephen Gelber, Bennet Hollander, Tax Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before PHILLIPS, Chief Judge, EN-GEL, Circuit Judge, and DUNCAN , District Judge.

       The Honorable Robert M. Duncan, Judge, United States District Court for the Southern District of Ohio, sitting by designation.

   PER CURIAM.

This is an appeal from a judgment in favor of the United States against defendant Euclid National Bank in the amount of $17,590.01.

The action was brought by the United States pursuant to 26 U.S.C. § 6332(c), alleging the Bank’s failure to honor a tax levy assessed against the commercial payroll checking account of a delinquent taxpayer, Julien Construction Company. After a non-jury trial on the merits, the court found that the Bank held certain funds of the taxpayer on May 20, 1970, when the Internal Revenue Service served Notice of Levy upon it. It further found that the Bank’s effort to set off monies owed it by the taxpayer was ineffective against the government’s tax lien, because it was exercised subsequent to the serving of the Notice of Levy. From these findings the Bank appeals.

Appellant’s first contention is that the court’s finding that the delinquent taxpayer had an actual credit balance of $17,590.01 in its account on May 20, 1970 was clearly erroneous. Appellant claims instead that the evidence shows that it had no property of the taxpayer when the Notice of Levy was served at 4:15 p. m. on May 20, 1970. In support of its contention, appellant cites paragraph I of the “Rules and Regulations Governing Commercial Accounts” which reads as follows:

“1. Bank, in receiving items for deposit, acts only as collecting agent of depositor and assumes no responsibility beyond the exercise of ordinary care. Items, including those drawn on any office of Bank, will be cashed, accepted or credited provisionally and if not found good may be charged back to depositor’s account or the amount thereof recovered from depositor at any time. Unpaid items may be returned by mail at depositor’s risk.”

The Bank argues that under the quoted rule, the delinquent taxpayer’s account received no actual credit on May 19, 1970, when the taxpayer deposited its check for $17,785.05 with the Bank. Further, it argues that there is no evidence in the record to show that the check was ever more than provisionally accepted before the Notice of Levy was received at 4:15 p. m. on May 20, 1970.

We reject appellant’s contention that it had no property of the taxpayer when it received the Notice of Levy. The Bank’s own records (Exhibits 4 and 8) indicate that the deposit made on the 19th of May by the taxpayer was credited to his account on that date. In addition, testimony of the Internal Revenue Service accountant corroborates these records and supports the district judge’s conclusion that the amounts listed in the records represented actual credit balances on the dates in question. We conclude, therefore, the district judge’s finding on this factual issue was not clearly erroneous.

Next, the Bank challenges as clearly erroneous the finding of the district court that the Notice of Levy was served on the Bank prior to the Bank’s attempted setoff of the funds in the taxpayer’s account. In support of this contention, appellant relies primarily upon Exhibit D, a document which shows the taxpayer’s account being debited in the amount of $17,225.86 and which is dated on the front May 20, 1970. Appellant contends that this document shows that the setoff occurred on May 20, 1970, presumably before the Notice of Levy was received at 4:15 p. m. on that day, and thus the Bank’s setoff has priority over the government lien.

The district court held as a factual determination that on May 23, 1970 “the Bank debited the account of Julien Construction Company in the sum of $17,-225.86, setting off the account against the loan indebtedness owed by the Company to the Bank. The evidence fails to establish that the Bank placed any hold on the account relating to a setoff prior to May 23, 1973”. This finding has ample support in the Bank’s records and summaries received in evidence and is not clearly erroneous. We find no indication that Exhibit D, now relied upon by the Bank, was received in evidence. Rather, the exhibit appears to have been in the nature of a response made by the Bank to the government’s request for admissions. Assuming somehow it was properly before the court, the exhibit itself indicates that it was not stamped by a teller until May 22, 1970. Finally and conclusively, a stipulation of facts entered into between the parties “for all purposes connected with suit” expressly states that “On May 23, 1970, the defendant Bank debited the account of Julien Construction for the sum of $17,-225.86, setting off this sum against the loan indebtedness owed by Julien”. Under such circumstances, the district judge correctly concluded that the tax lien was superior to the Bank’s right of setoff. United States v. First National Bank, 348 F.Supp. 388 (D.Ariz.1970), affirmed 458 F.2d 513 (9th Cir. 1972).

Accordingly, the judgment of the district court is affirmed.

      . 26 U.S.C. § 6332(c):
      “Enforcement of levy.—
      (1) Extent of personal liability. — Any person who fails or refuses to surrender any property or rights to property, subject to levy, upon demand by the Secretary or his delegate, shall be liable in his own person and estate to the United States in a sum equal to the value of the property or rights not so surrendered, but not exceeding the amount of taxes for the collection of which such levy has been made, together with costs and interest on such sum at the rate of 6 percent per annum from the date of such levy. Any amount (other than costs) recovered under this paragraph shall be credited against the tax liability for the collection of which such levy was made.
      (2) Penalty for violation.' — In addition to the personal liability imposed by paragraph (1), if any person required to surrender property or rights to property fails or refuses to surrender such property or rights to property without reasonable cause, such person shall be liable for a penalty equal to 50 percent of the amount recoverable under paragraph (1). No part of such penalty shall be credited against the tax liability for the collection of which such levy was made.”


author: PER CURIAM. WILLIAM E. DOYLE, Circuit Judge

text:
    Gary L. POINDEXTER, Appellant, v. Robert N. WOODSON et al., Appellees. James Mearl SHARP, Appellant, v. Robert N. WOODSON et al., Appellees. Samuel Ross BROOKS, Appellant, v. Robert N. WOODSON et al., Appellees. Ray Charles TURNER, Appellant, v. Robert N. WOODSON et al., Appellees. David Thomas KOWALEC, Appellant, v. Robert N. WOODSON et al., Appellees.
    No. 73-1532.
    United States Court of Appeals, Tenth Circuit.
    Argued Oct. 23, 1974.
    Decided Feb. 4, 1975.
    Malcolm E. Wheeler, of Hughes, Hubbard & Reed, Los Angeles, Cal. (Ronald L. Roseman, Kansas City, Mo., and Dwight Henderson, Wyandotte County Legal Aid Society, Kansas City, Kan., with him on the brief), for appellants.
    Kenneth F. Crockett, Sp. Asst. Atty. Gen. (Vern Miller, Atty. Gen., with him on the brief), for appellees.
    Before SETH, BARRETT and DOYLE, Circuit Judges.
   PER CURIAM.

These several cases were consolidated for trial. They were brought under the Civil Rights Act seeking injunctive relief and damages. The plaintiffs were, at the time the incidents took place, inmates of the Kansas State Penitentiary. The defendants were then officials in the state penal system.

The incidents which were alleged to have constituted cruel and unusual punishment in violation of the Eighth Amendment were exposure to tear gas while confined in cells, being sprayed with water hoses, and confinement in solitary facilities and in “strip cells.” The memorandum of the trial court describes the general prison conditions prevailing at the time, the serious riot which started at the prison in June with the destruction of cell houses and other facilities, the inmate control of certain cell houses thereafter, and other problems which continued after the riot for a considerable period of time. After the height of the riot, plaintiffs were confined in a separate facility at the prison known as the A and T which was designed for maximum security and segregation. This confinement was for charges growing out of the riot. Conditions at the prison had not returned to normal, and at the A and T facility, there were serious disturbances on August 27th. After several hours, the turmoil was growing worse, and all the inmates there, including the plaintiffs, were then tear gassed and sprayed with hoses to stop the disturbances. The tear gassing was severe, and had a residual effect.

The strip cells in which the plaintiffs were confined were about 9 by 5 feet in size, concrete floors, no windows, a floor drain, no toilets or wash basins, and no bunks. The prisoners were confined without clothing, pads or blankets, and thus slept on the bare floor. They received the prison food on paper plates and water in paper cups. There were furnished no supplies for personal hygiene or cleanliness. As indicated above, some months after the general riot, the plaintiffs were placed in the strip cells on several occasions for various periods of time. Plaintiff Kowalec was there confined for six days in September; plaintiff Poindexter for about two weeks in September; plaintiff Brooks from January 13th to February 17th; plaintiff Turner sixteen days in February, and plaintiff Sharp for four days in February.

The trial court found that the use of tear gas and water was not cruel and unusual punishment, but was necessary force to control the disruption. It held, however, that the use of the strip cells was contrary to the Eighth Amendment. The court ruled that no injunction should issue because the use of the cells had stopped and they had been welded shut. This fact was considered with the testimony of the new prison officials that use of the cells was unnecessary, and on what the court considered to be a good faith effort to remedy the situation. The trial court also held the defendants were not liable for money damages.

The record shows that the strip cells were part of a structure built at the Kansas prison about 1956. The design was obviously authorized by the appropriate authorities, and the trial court concluded that the use of these cells so built was authorized under Kansas statutes. K.S.A. § 76-2423. The trial court found that no court with jurisdiction over the defendants had ever held that the use of the cells constituted cruel and unusual punishment. The cells were thus a part of the state’s system of punishment and discipline, and had been for many years. Such cells were apparently fairly common in other states, as indicated in the reported decisions. See Knuckles v. Prasse, 302 F.Supp. 1036 (E.D.Pa.); and Hancock v. Avery, 301 F.Supp. 786 (M.D.Tenn.).

The Supreme Court, as long ago as Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793, indicated that the concept of “cruel and unusual punishment” must undergo change as the community standards and conscience change. Any cursory consideration of the historical changes in the nature of punishment for criminal offenses will demonstrate the wide fluctuations in severity and character. What may be considered cruel and unusual today was deserved and usual not too long ago. In this context, the use of devices and punishments at the moment of a declared change in characterization of them from usual to unusual places the prison officials in the same position as the police officers in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288, where the statute was declared unconstitutional. The Court there said:

“A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied.”

and also held:

“We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983.”

The situation of the prison officials in using the strip cell provided by the state and authorized by state law is thus within the holding of Pierson v. Ray.

The Supreme Court in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90, considered the varying scope of qualified immunity in a broader context than Pierson v. Ray, and held:

“These considerations suggest that, in varying scope, a qualified immunity is available to officers of the executive branch of Government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good faith belief, that affords basis for qualified immunity of executive officers for acts performed in the course of official conduct.”

The combination of scope of discretion-'-’ with reasonable grounds for belief and' good faith belief in the circumstances as they “reasonably” appeared at the time of the action is the expressed mix of factors. Scheuer v. Rhodes is a significant indicator of the good faith — reasonable grounds application to executive branch officials of a state. See also the similar factors of discretion and malice— good-faith in Smith v. Losee, 485 F.2d 334 (10th Cir.), and Williams v. Eaton, 443 F.2d 422 (10th Cir.). The consideration of the official’s evaluation of the situation facing them is equally important to the consideration of the case before us.

The incidents in issue took place after the riots at the prison, but during a time, and at a place, where the repercussions were still felt. This factor- and the absence of normal prison conditions was part of the “circumstances” facing the prison officials as referred to in Scheuer.

We have carefully examined the record and the findings relating to the use of tear gas and fire hoses as control measures during periods of disruption at the prison. It is sufficient to state that the findings and conclusions of the trial court are supported by the record and the applicable authorities. Adequate consideration was given to the circumstances prevailing at the time, .to the events which had transpired shortly before, and to the discretion vested in the officials. See Bethea v. Crouse, 417 F.2d 504 (10th Cir.).

The trial court’s findings show the absence of any malice on the part of defendants. The trial court permitted the plaintiffs to amend their pleadings to assert personal claims against the defendants, and allowed the defendants to amend to raise the defense of immunity. Each amendment was made for the reason that the case had been so tried. The trial court was thus correct in its application of qualified immunity, and in refusing to award damages. There was no error in its refusal to enjoin for the reasons it described. See Knuckles v. Prasse, 302 F.Supp. 1036, aff’d 435 F.2d 1255 (3d Cir.).

In view of this consideration of the issues, we have not examined the issue of respondeat superior as it might here apply, but instead note it as an unresolved problem in this case.

Affirmed.

WILLIAM E. DOYLE, Circuit Judge

(dissenting).

Because I disagree with the majority determination that immunity can be invoked in the present circumstances, I respectfully dissent.

The trial court’s findings treat the facts in some detail, and from these we realize the impact of the conduct. The conscience of the trial court was shocked by it. Notwithstanding this, immunity was extended by the trial court and is extended by this court to the officials. This is based on the fact that the Attorney General had never told them that subjection of inmates to this treatment was a violation of the Constitution of the United States.

In my judgment it was not necessary to so advise them. Suppose the rack and screw were being employed pursuant to state law or custom. Would the officers be allowed to claim good faith because of a mistaken belief that the law allowed it? I submit not.

Furthermore, the statute relied on, K.S.A. 76 — 2423, does not come near to authorizing the strip cell. True, it allows the imposition of solitary confinement and distress, but this falls short of prescribing the strip cell in all of its indignity.

I disagree with the majority opinion that the Supreme Court’s decision in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d. 90 (1974) is relevant authority for the majority decision. That case emphasized the necessity for “reasonable grounds for the belief formed at the time and in light of all the circumstances * * *.”

None of our prior decisions, including Smith v. Losee, 485 F.2d 334 (10th Cir. 1973), support the present decision. See also Dearman v. Woodson, 429 F.2d 1288 (10th Cir. 1970). Cf. Bethea v. Crouse, 417 F.2d 504 (10th Cir. 1969). In Bethea the Kansas Penitentiary and the Kansas authorities were named. There the allegation was that the warden and deputy warden stood by while a fellow inmate inflicted beatings of an extreme nature on the two plaintiffs. The court held that it was error to grant summary judgment.

The Court of Appeals for the Second Circuit has treated a case which is very similar to ours involving as it does strip cells. I refer to Wright v. McMann, 460 F.2d 126 (2d Cir.), cert. denied, 409 U.S. 885, 93 S.Ct. 115, 34 L.Ed.2d 141 (1972). The court there affirmed an award of damages against the warden in the amount of $1500.00 based on violation of the Eighth Amendment. The trial court had refused the defense of good faith and this action was approved by the appeals court.

Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) does not extend immunity based on good faith to a clear-cut violation of the Eighth Amendment — one which shocks the conscience. That was an arrest and confinement situation arising under the Fourth Amendment and depending on the quantum of evidence of probable cause. No such factual evaluation is necessary here. Rather, the stark facts are brought home and the action is so excessive that it could not create the mistaken belief that it is legal. In final analysis this is the reason for my disagreement with my brothers.

      . From a reading of the statute one could not conclude that it allows enforced nudity, lack of any toilet facilities excepting a hole in the floor, and a concrete floor without beds or bedding. This is far different from solitary confinement with deprivation of light and production of distress,