text:
    Reggie Clayton MADELEY, Petitioner-Appellant, v. C. V. KERN, Sheriff of Harris County, and the State of Texas, Respondents-Appellees.
    No. 73-1883.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 28, 1974.
    Reggie C. Madeley, pro se.
    Joe Moss, Asst. Dist. Atty., Houston, Tex., for C. V. Kern.
    Lange Baker, Asst. Atty. Gen., Austin, Tex., for state of Tex.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Following a jury trial in state court, Reggie Clayton Madeley was convicted of burglary with intent to commit theft. Because of three prior felony convictions, he was sentenced to life imprisonment under an enhancement count, Vernon’s Tex.Penal Code Ann. art. 63 (1953). On direct appeal the Texas Court of Criminal Appeals affirmed the conviction, Madeley v. State, 488 S.W.2d 416 (1972).

Madeley then filed a petition for writ of habeas corpus, 28 U.S.C. § v2254 (1970), in which he raised five points: (1) that his indicting and convicting juries were constituted in violation of the United States Constitution because the Texas requirement that grand and petit jurors swear an oath “so help me God” excludes qualified citizens who cannot conscientiously take such an oath; (2) that the method of his sentencing denied him credit for jail time served prior to sentencing; (3) that the State failed to prove the enhancement counts alleged in the indictment; (4) that the trial court improperly admitted evidence for enhancement purposes of a prior conviction that was invalid because Madeley had not been represented by counsel; and (5) that the trial court improperly admitted evidence seized during an illegal search.

The district court held that Madeley had not adequately exhausted available state remedies on his first two contentions, and refused to consider the merits. As to the remaining contentions, the court concluded that Madeley was not entitled to relief on the merits. On this appeal Madeley has withdrawn his second contention, but challenges the district court’s holdings on the other four.

The court below relied on Craig v. State, 480 S.W.2d 680 (Tex.Cr.App. 1972) in concluding that Madeley had not exhausted state remedies on the jury oath issue. In Craig the Texas Court of Criminal Appeals construed the state law to mean that oaths are to be administered in the manner most binding on the individual conscience. According to the district court below,

This construction narrows the Texas laws so that they are not unconstitutional on their face. Thus the question in each case would be whether they were applied in an unconstitutional manner, i. e., in contravention of the Craig interpretation. This would vary with the facts in each case. This petitioner has not presented the issue of the unconstitutional application of the oath requirement in his case to the Texas courts.

We agree with the court below that Madeley has not exhausted state remedies on his first contention, and that available state remedies are neither inadequate nor ineffective. Considerations of comity, as well as our desire to avoid piecemeal litigation, dictate that federal courts not consider petitions for writ of habeas corpus until all issues raised therein have been presented to the state court. Federal consideration of the merits of Madeley’s petition should therefore be deferred until all issues raised have been presented to the Texas courts. Hargrett v. Wainwright, 5 Cir. 1973, 474 F.2d 987; Mosley v. Smith, 5 Cir. 1973, 470 F.2d 1320; Burroughs v. Wainwright, 5 Cir. 1972, 454 F.2d 1165; Johnson v. Wainwright, 5 Cir. 1971, 453 F.2d 385.

The judgment below is therefore vacated, and the cause is remanded with instructions to dismiss Madeley’s federal habeas petition without prejudice to his right to renew it after state remedies have been exhausted on all grounds.

Vacated and remanded.

      . The Petitioner argues at some length that Craig does not stand for the proposition that oaths are to be administered in the manner most binding on a person’s conscience. He contends that all the Court of Criminal Appeals did was to reiterate the Texas rule that jurors may be allowed to affirm instead of being sworn. This is not so. The appellant in Craig argued the oaths required of grand jurors, witnesses, and jurors by articles 19.34, 35.02, and 35.22, V.A.C.C.P., were unconstitutional because they “ ‘systematically exclude non-believers from said juries and that appellant, an atheist, was therefore deprived of judgments of his peers.’ ” 480 S.W.2d 680, 683. All of the statutory oaths conclude with the phrase “ . . . so help you God.” The Court of Criminal Appeals then went on to apply the reasoning of its “oath or affirmation” cases and the Texas constitutional provision that “all oaths or affirmations shall be administered in the mode most binding upon the conscience . ” Tex.Const. Art. 1 § 5, and rejected the contention that the statutory oaths excluded atheists. In doing so it overruled two prior cases which had held that the “So help you God” formula was mandatory. 480 S.W.2d at 684.

      - He does state that the grounds he raises here were presented to the Court of Criminal Appeals in a pro se brief on appeal and rejected by that Court. See, Madeley v. State, 488 S.W.2d 416, 420 (Tex.Cr. 1972). However, the argument here is the same one presented in Craig, namely that the statutes and oaths are unconstitutional because they exclude atheists. Whatever its merit before Craig, it has none after that decision since the oaths have been construed consistent with the Constitution. As noted, systematic exclusion of atheists (or other religious groups) is another question.

      . See Vernon’s Ann.St.Tex.Const. art. I, § 4; Vernon’s Ann.Tex.Code Crim.Proc. art. 19.34, art. 35.02, art. 35.22 (1965).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Marcus James HARRIS, Jr., Defendant-Appellant.
    No. 73-1297.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 10, 1973.
    Decided Dec. 12, 1973.
    John P. Roehrick and Allan H. Rauch, Des Moines, Iowa, on brief for defendant-appellant.
    Allen L. Donielson, U. S. Atty., Des Moines, Iowa, on brief for plaintiff-ap-pellee.
    Before GIBSON and ROSS, Circuit Judges, and SMITH, Senior District Judge.

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

   PER CURIAM.

This is an appeal, after a jury verdict, wherein Marcus James Harris, Jr., was found guilty of violating the provisions of 21 U.S.C. § 841(a)(1) — the knowing and intentional distribution of heroin. On appeal Harris claims that he was prejudiced by the trial court’s improper interrogation of the witness Gaston, a forensic chemist. Finding no merit to Harris’ claim, we affirm.

The pertinent facts may be briefly stated as follows. Detective Crosby and informant Mitchell, on August 20, 1972, proceeded to 11th and University in Des Moines, Iowa. The informant Mitchell had, prior to that time, been strip searched. At about 3:00 p. m. the defendant Harris sold three capsules of a substance represented to be heroin to Crosby. Crosby gave the defendant $30.00. Harris then gave Crosby and Mitchell a ride back to Crosby’s hotel room. After leaving Harris’ vehicle, Mitchell and Crosby entered Crosby’s room, and Crosby, in the presence of Mitchell and other detectives, field tested the substance he had purchased from Harris in order to determine whether the substance might be heroin. The test indicated a positive reaction. Crosby then took the three capsules, put them in a glassine envelope, initialed the envelope, placed it in a lock seal envelope, put the lock seal envelope in a briefcase, and locked the briefcase. The briefcase remained in the room overnight. The next day Crosby examined the lock seal envelope and determined that it had not been tampered with. Thereafter, he opened the envelope, weighed the three capsules, resealed them in another envelope, initialed the envelope, and placed it in a vault in his office. Two days later the envelope was taken from the vault by Crosby, and mailed by registered mail, return receipt requested, to the laboratory in Chicago, Illinois. On August 24, 1972, the envelope was received by a government evidence technician at the laboratory. On September 2, 1972, Gaston, the chemist, removed the envelope from the vault at the laboratory, determined that the seals were unbroken, opened the envelope, conducted an analysis, reweighed the material, resealed the envelope, and placed the material in a vault. Thereafter, chemist Clark transported the material to trial, and the envelope was reopened at trial by chemist Gaston.

Before reaching the merits of Harris’ claim, it is important to emphasize that the foregoing facts adequately demonstrated the needed “chain of custody.” As we have said before, “[t]he criteria governing admission of exhibits into evidence is that there must be a showing that the physical exhibit being offered is in substantially the same condition as when the crime was committed.” United States v. Brown, 482 F.2d 1226, 1228 (8th Cir. 1973). See also United States v. Jones, 486 F.2d 476, 478 (8th Cir. 1973); United States v. Jackson, 482 F.2d 1264, 1266-1267 (8th Cir. 1973).

Specifically, Harris claims that the trial judge committed prejudicial error by asking Gaston, the chemist, “[w]hat is a lock seal?”, then, after Gaston had described what a lock seal was, asking, “Has this envelope been offered into evidence at this time?” It appears that the trial court was not “satisfied that the nature of the lock seal envelope adequately appears in this record . . . .” Harris argues that the trial judge became an advocate for the Government by asking these questions. We disagree.

As Professor McCormick has said, “The judge in his discretion may examine any witness to bring -out needed facts which have not been elicited by the parties.” C. McCormick, McCormick on Evidence § 8 at 12 (Cleary ed. 1972). And, as we have said before:

It is one of the chief duties of a trial judge to clarify the testimony of witnesses. His attempt to do so should not be a basis of error unless done in a biased manner.

Bryant v. United States, 462 F.2d 433, 436 (8th Cir. 1972). Stated differently,

“A federal judge may ask questions and has the prerogative of commenting directly on witnesses and their testimony. . . It is only when a judge becomes an advocate for one party that he oversteps the bounds of propriety in directing and governing the conduct of the trial.

Scruggs v. United States, 450 F.2d 359, 362 (8th Cir. 1971), cert. denied, 405 U. S. 1071, 92 S.Ct. 1521, 31 L.Ed.2d 804 (1972), quoting, Kramer v. United States, 408 F.2d 837, 841 (8th Cir. 1969).

In drawing the line between improper and proper questioning by a trial judge we have often placed emphasis upon whether the trial court “merely asked clarifying questions . . . .” Kramer v. United States, supra, 408 F. 2d at 841. Before the trial judge asked the nature of a “lock seal,” there had been testimony by government witnesses about lock seal envelopes. The trial judge, in order to determine the admissibility of the exhibits, felt the need to know the nature of the “lock seal” referred to by the government witnesses. The nature of the lock seal would also aid the jury in determining what weight should be given the testimony of the government witnesses should the exhibits be admitted. When viewed in this light, it is clear that the only thing the trial judge did was to clarify the testimony of the government witnesses. Stated simply, the trial judge has the power to “put to the witnesses such additional questions as seem to him desirable to elicit the truth more fully.” Ill J. Wigmore, Wigmore on Evidence § 784 at 189 (Chadbourn ed. 1970) (emphasis in original).

As for the trial judge’s question about whether the Government had offered the exhibit into evidence, we fail to see how this question prejudiced Harris in any way. The Government had theretofore attempted to introduce the exhibit, and thus it is clear that the trial judge’s question did nothing more than prompt the Government to reoffer the exhibit, something which the Government obviously would have done in any event.

The judgment of conviction is affirmed.


text:
    UNITED STATES of America, Appellee, v. Phillip Lee CARLILE, Appellant.
    No. 73-1332.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Oct. 17, 1973.
    Decided Dec. 12, 1973.
    Floy E. Dawson, Asst. U. S. Atty. (William R. Burkett, U. S. Atty., with him on the brief), for appellee.

      Jordan Hochstadt, Denver, Colo., for appellant.
    Before SETH and DOYLE, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       Honorable Talbot Smith, United States Senior District Judge, Eastern District of Michigan, sitting by designation.

   PER CURIAM.

This is an appeal from a judgment of conviction and sentence following a jury conviction on two counts of an indictment charging violations of 21 U.S.C. § 841(a)(1), involving the distribution of heroin, a narcotic controlled substance.

The testimony of the government’s witnesses disclosed that the appellant had, on November 4, 1972, sold him nineteen tin foil packets of purported heroin, all contained in a small brown bottle. On the following day an additional sale was made, on this occasion for five “spoons” at one hundred dollars per “spoon.”

In appellant’s opening statement to the jury it was made clear that the defense to the charges made was that of entrapment, and such was maintained throughout the trial. In fact, appellant himself took the stand, admitting the transfer of heroin to Agent Curtis on the dates in question and for the amounts involved. He urged, however, ■that the agent and the informant had played upon his sympathies by telling him that the heroin was badly needed by an addict friend who wanted enough heroin to allow him to get back to Texas. The agent testified that it was defendant himself who first broached the subject. The case went to the jury upon proper instructions, as to which no question is raised.

The appellant complains to us that the court improperly restricted the cross-examination of agent Curtis as to identification of the nineteen tin foil packets contained in the brown bottle, and their admission into evidence, since the agent’s initials could be found only on nine of them, although he had testified that at the time of the sale he had initialed all nineteen. The court disallowed defense counsel to pursue this line of inquiry and admitted the evidence in view of the defense of entrapment asserted. In this there was no error. As we held in Martinez v. United States, 373 F.2d 810 (10th Cir. 1967):

“It [the defense of entrapment] may be described as an affirmative or positive defense and it is in the nature of a confession and avoidance. It cannot be applicable to the facts of a particular case unless the commission of the crime charged is admitted by the accused raising the defense.” 373 F.2d at 811.

If there were any element of undue restriction upon these facts, which we cannot discern, the testimony of the appellant himself removes all questions for, in his testimony he admitted, and, indeed, insisted that the crimes charged were committed, and by him, hoping to convince the jury that this was done because of the government’s entreaties that he so involve himself. The trial court properly rejected the motion for acquittal and sent the case to the jury, which, as we have noted, rejected the defense made. We find no error in the conduct of the trial.

Affirmed.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Israel Esparza RANGEL, a/k/a Ray Range, a/k/a Ray Reyna, a/k/a Ray Ruiz, and David Esparza Rangel, Jr., Defendants-Appellants.
    No. 73-2787
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 4, 1974.
    George W. Shaffer, John J. Pichinson, Corpus Christi, Tex., for defendants-appellants.
    Anthony J. P. Farris, U. S. Atty., James R. Gough, Anna E. Stool, Asst. U.
    S. Attys., Houston, Tex., for plaintiff-appellee.
    Before BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al„ 5 Cir., 1970, 431 F.2d 409. Part I.

   PER CURIAM:

Appellant, Israel Rangel, was convicted on one count of importation of marijuana into the United States under 21 U.S.C.A. §§ 960(a)(1) and 952(a) and on one count of distribution of marijuana under 21 U.S.C.A. § 841(a)(1). Appellant, David Rangel, was convicted on one count of distribution. We affirm.

Appellant, Israel Rangel, complains here of the admission at trial of a tape recording made by Customs agents of an incriminating telephone conversation between Israel Rangel and co-defendant Murray (currently a fugitive from justice. After Murray had been arrested and taken to the Customs Office in connection with his participation in the scheme to import and distribute the marijuana he called Israel Rangel from the Customs Office. The Customs agents recorded the call. Statements made by Israel Rangel during the course of the conversation warranted the inference that he was a participant in the drug transactions. The tape was played twice before the jury. 18 U.S.C.A. § 2511(2) (c) provides that:

“It shall not be unlawful under this chapter for a person acting under col- or of law to intercept a wire or oral communication where * * * one of the parties to the communication has given prior consent to such interception.”

Appellant, Israel Rangel, contends that the government did not carry its burden of showing that co-defendant Murray voluntarily consented to the government’s interception of the conversation. We disagree. We think that there was sufficient evidence on the record to justify the District Court’s conclusion that Murray did voluntarily consent to the recording. Murray was unavailable to testify. The Government produced one of the Customs agents who was present who testified that Murray had been given his Miranda warnings when taken into custody, that he asked Murray whether he had his permission to tape the telephone call to Rangel and Murray replied “yes”, and that Murray was shown all of the taping equipment before the call was placed.

We reject Appellant’s contention that the Government did not present a detailed enough description of the events in the Customs Office preceding the telephone call to warrant a finding of voluntary consent. Appellant had full opportunity to cross-examine the Customs agent who testified. Furthermore, Appellant’s counsel strenuously objected whenever the Government attempted to elicit testimony concerning the conversation between Murray and the agent on the question of consent.

Unlike extrajudicial statements implicating a co-defendant, Bruton v. United States, 1968, 391 U.S. 123, 88 S. Ct. 1620, 20 L.Ed.2d 476, this conversation implicated Israel only. Thus we find no merit in Appellant David Ran-gel’s contention that the admission of the taped telephone conversation against Israel Rangel unduly prejudiced David Rangel, especially in light of the Court’s careful instruction that the conversation was admissible only against Israel Ran-gel.

Appellants assert that the phrasing of a question by the prosecuting attorney in the cross-examination of David Rangel was so prejudicial as to require a mistrial since it might have been construed as implying misconduct on the part of the attorneys. The Court promptly sustained Appellant’s objection to the question. We reject the claim that the phrasing of this question by the prosecutor deprived appellants of their Sixth Amendment right to assistance of counsel by discrediting appellant’s counsel in the eyes of the jury. Nor in the totality of this record was any likely prejudice demonstrated. See United States v. Steinkoenig, 5 Cir., 1973, 487 F.2d 225.

Affirmed.

      . The brief conversation, in which no names were mentioned, was devoted to the arrangement of a meeting after a previously scheduled one had failed to materialize.


text:
    UNITED STATES of America, Appellee, v. Zare TIRINKIAN, Appellant.
    Nos. 517, 518, Dockets 73-2220, 73-2318.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 21, 1973.
    Decided Dec. 7, 1973.
    Paul B. Bergman, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., Eastern District of New York, and L. Kevin Sheridan, Asst. U. S. Atty., on the brief), for appellee.
    Robert M. Mardirosian, Watertown, Mass., for appellant.
    Before LUMBARD, MANSFIELD and MULLIGAN, Circuit Judges.
   PER CURIAM:

Zare Tirinkian appeals from judgments of conviction in the Eastern District on July 16, 1973, for importing approximately 286 pounds of hashish (21 U.S.C. §§ 846, 952(a) and 960(a)(1)) and conspiracy to defraud the United States by agreement to use false shipping documents (18 U.S.C. §§ 371, 1001) and a sentence of two and one-half years, following a jury trial. We affirm.

The only question requiring discussion concerns the admission of testimony that on June 20, 1972 as Zare’s brother, Al-exan Tirinkian, and Antranik Mala jab-an, were about to fly from Boston to Beirut, Lebanon on one-way tickets purchased that same day, Mala jaban had with him a small suitcase which contained one or two pairs of pants, a shirt and about $146,000 in United States currency.

As other evidence showed that Mala-jaban was acting with three Tirinkian brothers in such a way that the jury could find that he was aiding and abetting them in the illegal importation of goods from Beirut, Lebanon to Brooklyn, some of which contained hashish, it was not error to receive testimony regarding Malajaban’s possession of $146,000 in cash.

The evidence involved three shipments supposedly of household goods, all from Beirut. The first consigned to Abraham Bardakjian arrived in June 1972. Bar-dakjian had come to the United States on April 4 on an airline ticket given to him by Zare. Zare found lodging for Bardakjian in Watertown, Massachusetts which he shared with Malajalian who was an acquaintance of Zare. Zare informed Bardakjian around June 14, in a conversation overheard by Malajalian, that a shipment consigned to him had arrived and that he, Bardakjian, should pick it up. Bardakjian then went to Brooklyn on June 14th with Alexan Tir-inkian, Zare’s brother, picked up two wooden crates, and at Alexan’s suggestion, gave some money to Customs Inspector Gannotta. Alexan then took the crates away and five hours later he took Bardakjian back to Boston.

The second shipment was consigned to Varougan Garabedian, who like Bar-dakjian was married to one of Zare’s wife’s sisters. Despite Garabedian’s protests, Zare told him at the end of May 1972 that household goods were coming to him and as an immigrant he could bring them in without paying a tax. On June 16, 1972, at Zare’s urging, Ga^abedian’s wife went to New York with Zare and Alexan to pick up the shipment. Zare gave Inspector Gannot-ta some money and the crates were inspected and released. Alexan secured a truck which Zare then loaded and Alex-an drove away. Zare and Mrs. Gara-bedian returned to Boston.

It was the seizure of the third shipment on June 20, 1972 which coincided with the purchase of one-way air tickets for the flight of Alexan and Malajalian to Beirut that same day. On the morning of June 20, Jery Tirinkian, also a brother of Zare, and Krikor Vartanes-sian went to Pier 5 in Brooklyn to pick up a shipment of two crates of household goods consigned to Vartanessian. Two different inspectors inspected the crates and when the crates were opened they found approximately 286 pounds of hashish valued at between $169,000 and $286,000. Meanwhile Jery absconded, leaving Vartanessian to explain. Zare had told Vartanessian in March that he was sending a package to him. After Vartanessian received mail notice of the arrival of the shipment, Zare had persuaded him to go to New York with Jery on June 20.

This summary of the.evidence demonstrates the relevance of the testimony regarding Malajalian’s possession of $146,000 in cash, as well as the overwhelming proof of the appellant’s guilt. It is immaterial that Malajalian was not indicted and was not named as a co-conspirator. His relationship to the Tirinkians and to others involved in the importation of the shipments was such that it provided an adequate basis for the jury to consider that his action in attempting to take with him to Beirut the small bag and its contents of $146,000 was done on behalf of the appellant, Zare, and his brother Alexan, with whom he was then traveling. Cf. United States v. Fisher, 455 F.2d 1101, 1103-1104 (2 Cir. 1972). Moreover, the sudden flight to Beirut was arranged on June 20th, the same day the third shipment was seized at Pier 5 in Brooklyn.

There is no merit to the appellant’s claim that the indictment should have been dismissed because he was not tried within six months of his arrest on June 22, 1972. The government was ready as required by the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases. There was unavoidable delay due to the condition of Judge Rosling’s calendar and the judge’s death on April 16, 1973, before trial was finally commenced on June 26, 1973 before Judge Judd to whom the case had been reassigned.

Affirmed.

      . The same indictment charging the appellant with conspiracy to defraud the United States charged Gannotta in four counts with receiving an unlawful gratuity and with bribery. Appellant and Gannotta were tried together; the jury acquitted Gannotta.

      . Coincidentally, Malajalian was detained at the airport prior to his flight because he fit the profile of a potential skyjacker. After being questioned by Special Agent Siegel of the Bureau of Customs, he was permitted to leave the airport with Alexan, who had served as his interpreter, but without the $146,000 in cash which was confiscated. At the time of the questioning, Special Agent Siegel was not aware of any involvement which either Alexan or Malajalian might have had with matters charged in the indictment. In any event they were not apprehended and both were apparently in Beirut at the time of trial.


text:
    Charles A. HICKMANN and Phyllis C. Hickmann, Plaintiffs-Appellants, v. Gregory WUJICK, as Assessor of the Town of Huntington, Defendant-Appellee.
    No. 203, Docket 73-1666.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 4, 1973.
    Decided Dec. 7, 1973.
    Charles A. Hickmann, Huntington, N. Y., for plaintiffs-appellants.
    Frank J. Mack, First Deputy Town Atty. (Frank J. Mack, Huntington, N. Y., and Herbert M. Levy, New York City, on the brief), for defendant-appel-lee.
    Before WATERMAN and FEINBERG, Circuit Judges, and GURFEIN, District Judge.

       Honorable Murray I. Curfein, of the United States District Court for the Southern District of New York, sitting by designation.

   PER CURIAM:

Plaintiffs commenced this civil action in the United States District Court for the Eastern District of New York, pursuant to 28 U.S.C. § 1343, seeking a declaratory judgment, damages and injunc-tive relief to redress claimed deprivation, under color of New York State law, of rights secured by the United States Constitution, more particularly their prior right as parents to control the education of their children. The sole defendant named in plaintiffs’ complaint is the Assessor of the Town of Huntington, Suffolk County, New York, where plaintiffs reside and pay real property taxes on the basis of an assessment roll prepared by defendant as required by State law.

Plaintiffs moved for a preliminary injunction enjoining defendant from “denying [them] a $200.00 tax credit against the school property taxes they will be required to pay for the 1971-72 tax year . . . .” They claim, in substance, that this tax relief is needed to enable them to pay the tuition charged by the non-public school their children attend.

Judge Neaher dismissed the complaint on the ground that the Federal District Coui't lacked jurisdiction to enjoin the assessment, levy or collection of taxes imposed under State law. We affirm.

28 U.S.C. § 1341 provides that: “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such state.”

We concluded in American Commuters Association v. Levitt, 405 F.2d 1148, 1151 (2 Cir. 1969), that “when there are adequate state remedies available, Section 1341 means what it so plainly says and that federal jurisdiction is still precluded by it.” Basing a complaint upon alleged violation of civil rights, 28 U.S.C. § 1343(3) and 42 U.S. C. § 1983 or of the Federal Constitution will not avoid the prohibition contained in Section 1341. Levitt, supra; see also Gray v. Morgan, 371 F.2d 172 (7 Cir. 1966), cert. denied, 386 U.S. 1033, 87 S.Ct. 1484, 18 L.Ed.2d 596 (1967). Plaintiffs’ argument that they are not seeking to claim illegality or that the assessment was illegal is no more than a play on words. Nor is their argument that they have no plain, speedy and efficient remedy in the New York Courts more convincing.

As Judge Neaher observed, the Real Property Law, McKinney’s Consol.Laws, c. 50-a, of the State of New York subjects all real property in the State to taxation by counties, cities, towns, villages or school districts for municipal or school district purposes. (N.Y. Real Property Tax Law § 300 (McKinney 1972)). The Suffolk County Tax Act, enacted by the State Legislature, permits the taxing of real property in Suffolk County in accordance with the needs of its several town governments, villages and separate school districts.

The remedies afforded for review of real property assessments are adequate. Plaintiffs may seek judicial review of their assessment under Section 700 of the Real Property Tax Law, and adverse determinations may be appealed, § 724. That the remedy is expeditious is shown by Section 700(3) which grants to such proceedings and appeals a preference over all other civil actions and proceedings in all courts. The Rules of Practice, Supreme Court, Suffolk County permit the taxpayer to move for judgment on the pleadings (N.Y. Real Property Tax Law § 720(1), (McKinney 1972); or to move for summary judgment pursuant to CPLR 3212.

Moreover, the taxpayer may bring a declaratory judgment action where the taxing statute is said to be unconstitutional. Richfield Oil Corp. v. City of Syracuse, 287 N.Y. 234, 239, 39 N.E.2d 219 (1942).

The complaint was properly dismissed for lack of subject matter jurisdiction.

Affirmed.


author: CLARK, Circuit Judge:

text:
    Henry Lewis MONTGOMERY, Petitioner-Appellant, v. Joseph S. HOPPER, Warden, Georgia State Prison, Reidsville, Ga., Respondent-Appellee.
    No. 73-1886.
    United States Court of Appeals, Fifth Circuit.
    Dec. 13, 1973.
    Charles B. Pekor, Jr., Columbus, Ga. (Court-appointed), for petitioner-appellant.

      William F. Bartee, Jr., Courtney W. Stanton, Asst. Attys. Gen., Arthur K. Bolton, Atty. Gen., Atlanta, Ga., for respondent-appellee.
    Before THORNBERRY, SIMPSON and CLARK, Circuit Judges.
   CLARK, Circuit Judge:

When this same habeas corpus case was here before (457 F.2d 767), we vacated the district court’s action in dismissing on the pro se petition alone and remanded for a hearing. In enumerating various matters which the trial court might consider, we said:

It does not appear that this denial was appealed to the Georgia Supreme Court. However, whether such an appeal was taken, and if not, whether it was deliberately bypassed, are issues that must be confronted initially by the district court. [457 F.2d at 768]

We likewise set out other procedural matters which were open for consideration on remand. The opinion intended to disabuse any notion that the only thing left to do was to proceed with a hearing on the merits of the petition. Unfortunately, the word choice used to convey to the trial court the idea that the failure to appeal could constitute a bypass (a fact matter which would require initial determination by that court) may have inadvertently spawned difficulty. Pursuant to our mandate, the court below held a hearing and entered a written opinion which, after setting forth the quoted excerpt, dealt with bypass as “the question presented” and found that no notice of appeal had been filed in the Georgia Supreme Court and that petitioner had deliberately bypassed available state remedies. A rereading of our prior opinion with the illumination of hindsight makes clear how a busy district judge might interpret it to require that he give first consideration to this issue. Now that the facts have been adduced, we are convinced that they simply will not support a determination that this petitioner, who was not a lawyer and was not then represented by counsel, understandingly and knowingly acted to deprive himself of all collateral review on the constitutional merits of his imprisonment in any state or federal court.

Following his 1961 guilty plea to charges of robbery by force and burglary, Henry Lewis Montgomery was sentenced to 20 years in a Georgia state penitentiary. Approximately ten years later, he filed a pro se habeas corpus petition in the Superior Court of Tattnall County alleging in substance that he had been denied his Sixth Amendment right to effective assistance of counsel at the guilty plea proceeding. This petition was dismissed, and Montgomery testified that he then attempted to appeal the dismissal to the Georgia Supreme Court. A copy of Montgomery’s notice of appeal was received by the Attorney General of Georgia, but the Tattnall County Superior Court has no record of any filing by Montgomery of a notice of appeal, and the Georgia Supreme Court has no record of his appeal. Four months after the notice copy was received by the Attorney General, Montgomery brought this federal habeas corpus petition under 28 U.S.C. § 2254. The district court’s denial of relief without holding an evidentiary hearing on the basis of failure to exhaust available state remedies produced the first appeal to this court.

After conducting an evidentiary hearing consisting of the testimony by petitioner and the Clerk of the Tattnall Superior Court, the court concluded that petitioner, contrary to his sworn testimony, never filed a notice of appeal in the court system of Georgia from the denial of habeas corpus relief. This conclusion, based on physical as well as testimonial proof, is not clearly erroneous. Alternatively, the court determined that even if petitioner did mail his notice of appeal he deliberately bypassed the appellate remedy by failing to follow his notice with inquiry as to its status. This latter conclusion was based in part on petitioner’s demonstrated knowledge of how to ask for leave to amend his state petition and his subsequent ability to process his federal petition at the trial and appellate level. The court furthermore found Montgomery to lack credibility on three grounds: (1) his testimony concerning the plea he originally entered was inconsistent, (2) his statement that he was sentenced to a term of fifteen years on a not guilty plea without a trial was contradicted by court records and the clerk’s personal recollection, and (3) his statement that he did not know people could be represented by lawyers was unbelievable in light of his three prior criminal convictions. Finally, the court noted that Montgomery had served two-thirds of his fifteen year sentence without any suggestion of irregularity. On the strength of these factors, the district judge determined that Montgomery deliberately bypassed his right to appeal and was not entitled to further review of the substantive merits of his claim for relief.

The finding of a deliberate bypass of state remedies precludes federal habeas review of even a meritorious claim that constitutional rights have, been denied. Indeed, this particular finding also ends the possibility of further state court review for Montgomery; Consequently, the standards for determining that such a waiver has occurred are rigid. In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the Court stated the test as follows:

If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly' forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refuse to entertain his federal claims on the merits .... [372 U.S. at 439, 83 S.Ct. at 849] (emphasis added)

The Fay standard depends upon “the considered choice of the petitioner.” While Fay does not absolutely preclude a finding of deliberate bypass by a petitioner who, at the time of the procedural default, was unrepresented by counsel, it does render the subjective finding of knowledgeableness and understanding an exceedingly difficult one to make in that circumstance. See Wynn v. Smith, 446 F.2d 341, 345 (5th Cir. 1971).

The district court’s conclusions that Montgomery “did not in fact file a notice of appeal in the state court” and that “if the petitioner did mail the notice of appeal he deliberately failed to pursue the remedy in the state court .” do not support a Fay determination that Montgomery “knowingly and understandingly” sought to forego his state habeas appeal as a tactical short cut to federal court. Not even an outright .failure to file an appeal would, of itself, constitute a deliberate bypass in the absence of clear proof that the decision not to appeal was made knowingly and understandingly in order to secure some benefit to the petitioner. Similarly, proof that a petitioner has taken no steps to perfect an attempted appeal would not, without more, support an inference of deliberate bypass of state remedies, Johnson v. Smith, 449 F.2d 127 (5th Cir.1971); Wynn v. Smith, supra. The court’s additional finding that Montgomery acted “deliberately” in failing to pursue his appeal does not furnish a sufficient foundation upon which to rest a conclusion that a bypass has occurred. The term “deliberate bypass” is one of art. While the word “deliberate” can be equated in meaning with “knowing”, it is not legally synonomous with “knowingly and understandingly” as that term is applied to testing asserted bypass actions of a lay prisoner proceeding pro se.

The circumstances revealed by this record fall short of authorizing the conclusion that Montgomery deliberately bypassed his right of appeal to the Supreme Court of Georgia to gain any tactical or strategic advantage in the pursuit of his claims. We vacate and remand for further consideration of his petition in accordance with this and our prior opinion, with continued insistence that neither action by this court contains the slightest trace of an indication of any prejudgment of how the remainder of this matter should be resolved. We, furthermore, leave to the district court’s discretion the determination of whether the issue of exhaustion, or (if the claims presented have been exhausted) the merits of Montgomery’s claim, can be adjudicated from the records of the previous state and federal habeas hearings or whether supplemental testimony is necessary.

Vacated and remanded.

      . The trial court where the notice was required to be filed had no record of its receipt. Records of the Supreme Court disclosed no inquiry as to the appeal. The document tendered by petitioner as a copy of the notice which was described by him as having been written by his own hand (1) was an original, and (2) was not in petitioner’s handwriting.


author: BELL, Circuit Judge:

text:
    A. L. VEVERICA, d/b/a A. L. Veverica Salvage Co., Plaintiff-Appellant, v. DRILL BARGE BUCCANEER NO. 7, her engines, furniture, tackle, apparel, etc., In Rem, and Jerry D. Ward, d/b/a Buccaneer Drilling Company, In Per-sonam, Defendants-Appellees, American Bank & Trust Co. of Lafayette et al., Intervenors-Appellees.
    No. 73-1211.
    United States Court of Appeals, Fifth Circuit.
    Jan. 25, 1974.
    Rehearing Denied Feb. 22, 1974.

      James L. Wheeler, New Orleans, La., for plaintiff-appellant.
    Jim Ortego, New Orleans, La., for Jerry Ward.
    W. Gerald Gaudet, Lafayette, La., H. Barton Williams, Overton T. Harrington, Jr., New Orleans, La., for American Bank & Trust.
    Roger I. Dallam, Gretna, La., for Independent Towing.
    N. B. Barkley, Jr., W. J. Larzelere, Jr., Terrence C. Forstall, New Orleans, La., for Hunt Tool Co.
    Alvin W. La Coste, New Orleans, La., for M & L Boat, T & L Boat, Guidry Enterprises, Galliano Towing, Les-Tie, TBS Towing, and Independent Towing.
    William S. Stone, New Orleans, La., John W. Hutchinson, Lafayette, La., Ronald J. Rakosky, New Orleans, La., for Drill Barge Buccaneer No. 7 and Jerry D. Ward.
    Before BELL, COLEMAN and RO-NEY, Circuit Judges.

      '. We note that this is not a ease in which lienors sought to take advantage of a superior lienor’s extension of credit by libelling the vessel prior to maturity of the superior lien. Since those facts are not before us, we need not consider the type of protection, if any, that should be extended such a superior lienor.

   BELL, Circuit Judge:

This appeal involves the validity and ranking of claims on sale proceeds of a vessel seized in rem. Under the lower court’s judgment there would remain for the owner, after payment of costs and lien claims deemed valid, about $17,000 of the $50,000 proceeds. We affirm in part and reverse in part, ruling that appellant, a contract salvor who has lost his maritime lien, may take remnants and surplus ahead of the owner.

The Buccaneer #7 is a floating drill barge which capsized and partially sank in shallow inland waters in May, 1970. In late June, 1970, appellant entered an agreement with the vessel’s charterer by which he would salvage the Buccaneer for $75,000 on a no-cure no-pay basis. On July 3, after work had commenced, the agreement was amended to recognize that it would take some time for the owner to obtain insurance proceeds, and that therefore right to payment would be deferred until the insurance proceeds were received, but not longer than 12 months. The salvage operation proceeded to a successful conclusion over a period of two weeks.

During the latter part of July, 1970, appellant engaged in discussions with Edgewater Oil Company concerning assignment of the salvage contract. On August 3, 1970, appellant filed this action and seized the vessel. On August 6, he signed an agreement finalizing the Edgewater assignment for $28,000.

Appellant’s interest in the vessel was contested not only by the owner, appearing as claimant, but also by various in-tervenors who filed in rem claims. Several of these intervening claims were liquidated by default and consent judgments to which neither the owner nor appellant objected. In May, 1971, the vessel was sold and the proceeds were deposited in the court’s registry pending determination of the validity and ranking of the various claims. The case was referred to a magistrate as special master, and the district court adopted his findings, conclusions and recommendations. The resulting order permitted recovery by certain of the intervenors, with the remnants and surplus of and from the proceeds going to the owner. Appellant was treated as a general creditor and was denied all participation in the proceeds. This appeal followed, with victorious intervenors responding as ap-pellees.

The decision of the lower court was based upon four alternative grounds, any one of which would have been sufficient to preclude appellant’s recovery. For one, it was concluded that no lien had been created by either the salvage contract or the salvage operation itself. The court also found that if a lien had been created, it was waived by appellant’s failure to abide by the agreement to defer payment — the vessel was seized within one month of the salvage. Further, the lower court concluded that even if a lien had been created and was not otherwise waived, salvage liens are extinguished by assignment. Finally, recovery was denied on the theory that appellant was not the real party in interest within the meaning of Rule 17, F.R.Civ. P., in that he had assigned his lien rights, if any, contemporaneously with filing the complaint.

Despite these multiple bases for completely denying appellant’s claim, the district court also ruled that if there were an enforceable lien it could be for no more than $28,000, the price paid by Edgewater. This was done on the theory that while a salvage contract may be binding between the parties, as to prior lienholders it is subject to an equitable determination of reasonableness.

Our view of the case is that the salvage contract created a lien, but that the remedies accorded by the lien were suspended until payment was due. Thus, appellant had no right during the suspension period to seize the vessel, and also no right to participate in the proceeds as a lienor. However, we also hold that appellant’s claim is one which may be satisfied from remnants and surplus.’ Finally, we rule that neither the real party in interest issue nor the assignment to Edgewater defeat appellant’s claim.

I. .

The initial question is whether appellant’s services gave rise to a salvage lien against the Buccaneer #7. As indicated by 46 U.S.C.A. § 953, admiralty recognizes two methods of creating a lien for salvage services, by pure salvage and by contract. The first of these is discussed in The Sabine, 1880, 101 U.S. 384, 25 L.Ed. 982. See also Fort Myers Shell and Dredging Co. v. The Barge NBC 512, 5 Cir., 1968, 404 F.2d 137, 139. As is consonant with the theory of the pure salvage lien, the cases require not only success in the salvage operation, but also that it be performed' in the face of marine peril, and that the service be rendered voluntarily and not to fulfil a contractual duty. The Sabine, supra. To dismiss appellant’s contention that he has a pure salvage lien we need only note that his services were provided pursuant to a contractual duty.

Appellant’s claim to a contractually based salvage lien is countered by two arguments. The first is that under the contract’s terms credit was extended to the owner, not the ship. See The President Arthur, 1929, 279 U.S. 564, 49 S.Ct. 420, 73 L.Ed. 846. The intervenors support this argument by pointing to the facts that the contract does not specifically bind the ship, and that appellant was expecting payment from insurance proceeds. We think these facts' inadequate to defeat the lien in light of Point Landing, Inc. v. Alabama Dry Dock & Shipbuilding Co., 5 Cir., 1958, 261 F.2d 861. In that case, the materialman sold his goods directly to the vessel’s owner, and not only obtained a promissory note and a chattel mortgage on the vessel, but also a mortgage on real estate “as additional security for the said obligation.” The documents did not specify that any maritime lien was retained. On the basis of 46 U.S.C.A. § 971 (which declares that to create a maritime lien it shall not be necessary to allege or prove that credit was given to the vessel), the court ruled that a lien arises from the furnishing of services to a vessel “unless it is affirmatively established that it was done solely on personal credit.” 261 F.2d at 867. Under this authority, the intervenors must point to evidence which “might permit the inference that the supplier purposefully intended to forego the valuable privilege which the law accords and look solely to the owner’s personal credit.” Id. This they have failed to do, so we must recognize a lien. See also The Crustacea, 5 Cir., 1966, 369 F.2d 656, 660.

The intervenors also contend that the deferral of payment for up to a year operated to waive the lien. We are convinced to the contrary. The very purpose of maritime liens is to encourage necessary services to ships whose owners are unable to make contemporaneous payment. Piedmont & George’s Creek Coal Co. v. Seaboard Fisheries Co., 1920, 254 U.S. 1, 9, 41 S.Ct. 1, 3, 65 L.Ed. 97, 101. In order to preserve this source of credit, and in order to facilitate ordinary and reasonable commercial practices, we align ourselves with those early cases which held that credit of a duration consistent with the lien does not waive the lien, but merely suspends the remedy on the lien until its expiration. See The Napoleon, E.D.Wis., 1877, 17 F.Cas. 1150 (No. 10,011); The Kearsarge, D.Maine, 1855, 14 F.Cas. 165 (No. 7,634); The Antarctic, D.Mass., 1852, 1 F.Cas. 1037 (No. 479); The Nestor, C.C.D.Maine, 1831, 18 F.Cas. 9 (No. 10,126). Further, we find no inconsistency between a salvage lien and a year’s credit.

II.

Had appellant honored the credit he extended we would have no difficulty recognizing and enforcing his lien. He chose, however, to prematurely seize the vessel, and we therefore must determine the effect of that action. As will be seen, we conclude that by so doing appellant waived his salvage lien.

The concept of a premature libel arose in three early cases. See The Falcon, S.D.N.Y., 1874, 9 F.Cas. 743 (No. 5,078a); The Antarctic, supra; The Nestor, supra. These cases recognized that failure to honor an agreed period of credit was a defense to an in rem proceeding. They permitted liens subject to an extension of credit, but they treated them as inchoate, remediless liens until the credit periods expired. On the basis of both equitable and commercial considerations, we think that these principles are wholly applicable to appellant’s case. He cut off the possibility that after repair the ship’s earnings could be used to pay its lienors. By so doing he has deprived the owner of a promised grace period, and he has prejudiced any subsequent suppliers who might have relied on the salvor’s willingness to defer action on his superior lien. We are unwilling to open the extraordinary and costly in rem remedy to those who have so little regard for their own agreements and the reasonable expectations of others. Further, we are supported in this approach by the analogous executory contract doctrine, which denies in rem remedies to claimants who have not themselves fully performed their duties under the contract on which they base their claims. See The Yankee Blade, 1857, 19 How. 82, 60 U.S. 82, 90, 15 L.Ed. 554, 556; The Helen, 5 Cir., 1951, 189 F.2d 148. While we do not rule on whether appellant’s failure to wait out the year rendered the salvage contract “executory,” we do refer to this doctrine for the proposition that admiralty courts are not bound to accord full protection to those who, for whatever reason, have failed to execute their own contractual duties.

Appellant’s arguments on this point are not persuasive. He seeks to justify the early seizure as necessary to protect his lien against erosion by later maritime services, but this ignores the fact that his salvage lien, assuming maturity, would have priority over repair and supply liens, and that any subsequent services enhancing the Buccaneer’s value would accrue to his benefit if seizure later became necessary. The William Leishear, D.Md., 1927, 21 F.2d 862. See also, Great Lakes Towing Co. v. St. Joseph-Chicago S. S. Co., 7 Cir., 1918, 253 F. 635. He also points out that neither the owner nor the other lienors objected to the seizure as premature. Whether or not this would have merit were the owner the only claimant, we need only point out that this ease involves third parties who had valid matured liens on which they could libel the ship at any time. They were within their rights when they chose to permit the libel to take its natural course, and this choice should not now serve to relieve appellant of the burden of a proceeding he precipitated.

III.

After payment of maritime and non-maritime liens, a portion of the proceeds of sale will remain in the district court’s registry. That court would have paid this amount to the ship’s owner. We reverse on this point, and hold that remnants and surplus should go towards satisfying appellant’s non-lien maritime claim. This approach is not, as we shall demonstrate, unprecedented. Further, we consider it to be completely consonant with Justice Bradley’s opinion in the second Lottawanna case, 1875, 21 Wall. 558, 88 U.S. 558, 22 L.Ed. 654, which permitted non-maritime lienors to receive surplus proceeds:

“The court has power to distribute surplus proceeds to all those who can show a vested interest therein, in the order of their several priorities, no matter how their claims originated. . The propriety of such a distribution in the admiralty has been questioned on the ground that the court would thereby draw to itself equity jurisdiction. . . . But it is a wholesome jurisdiction very commonly exercised by nearly all superior courts to distribute a fund rightfully in its possession to those who are legally entitled to it; and there is no sound reason why admiralty courts should not do the same.”

88 U.S. at 582, 22 L.Ed. at 664. Concerning the equitable nature of an admiralty court’s powers, see the discussion and citations in Cates v. United States, 5 Cir., 1971, 451 F.2d 411 at 414 and note 8.

The precise question before us is whether appellant acquired the type of interest in the Buccaneer which under The Lottawanna permits a court of admiralty to give him preference over the owner and any general creditors who may be awaiting the owner’s receipt of remnants and surplus. In concluding that appellant did acquire such an interest, we are greatly impressed by the fact that his claim is of maritime origin, and is one which under ordinary circumstances would have accorded him a high priority lien. It is appellant’s services which have preserved the ship, and which have made it available in this admiralty proceeding. While appellant’s premature seizure has cost him his privileged position, we do not believe it should deny him all rights to participate in the sale proceeds. We think that he retained an interest in the vessel which an admiralty court can protect, and that his claim is such that it should not be subjected to the uncertainties of non-maritime remedies against the owner, or worse yet, to the possibility that it be ranked by a non-maritime court against the claims of other creditors. Cf. The Willamette Valley, N.D.Cal., 1896, 76 F. 838, 849-850, 852-854, where the court refused to entertain various non-maritime claims to remnants and surplus on the grounds that they could be more appropriately ranked by state courts.

Our holding is not without preceden-tial support. In several early cases maritime non-lien claimants were granted access to remnants and surplus, although they could not have libeled the vessels themselves. See The Stephen Allen, S. D.N.Y., 1830, 22 F.Cas. 1250 (No. 13,361); The Boston, S.D.N.Y., 1832, 3 F.Cas. 918 (No.1,669); The President, C.C.E.D.Pa., 1824, 30 F.Cas. 909 (No. 18,201). More recently, in The Astoria, 5 Cir., 1922, 281 F. 618, this court awarded remnants and surplus to a non-lien supplier of maritime services. As in appellant’s case, the supplier in that case had been the initial libelant, despite having no lien, but the sale had proceeded on the basis of liens in favor of inter-venors.

We are aware of considerable authority that is seemingly to the contrary, speaking in broad terms of the necessity of a lien to participate in an in rem proceeding. We note, however, that most of this authority concerns claims which do not under any circumstances give rise to maritime liens. See e. g., The Atlantic City, 3 Cir., 1915, 220 F. 281 (shipbuilding contract); The Lydia A. Harvey, D.Mass., 1898, 84 F. 1000 (claim of insurer who salvaged vessel in his own interest) ; The Willamette Valley, supra, (claim of surety who posted bond for release of ship; claim based on state court judgment; claims based on certificates of owner’s receiver issued to non-maritime creditors; and wage claim of ship’s master).

Of more concern is the Supreme Court’s decision in The Edith, 1877, 94 U.S. 518, 24 L.Ed. 167. The Court was primarily concerned with whether the li-belant had met the statutory requirements for preserving his state law lien, and also with whether the lien had been discharged, under the state statute, by the posting of a bond. After deciding these issues against the libelant, the Court closed with the following paragraph :

“It need hardly be added, that though a proceeding in rem and a petition for payment of a claim out of proceeds of a sale remaining in the registry are distinct things — the former proceeding on the ground of a lien — yet no one except an owner is entitled to payment out of the registry, unless he has a lien upon the fund therein. The court can marshall the fund only between lien-holders and owners.”

94 U.S. at 523, 24 L.Ed. at 168. We note initially that the preceding statement is not the principal holding of The Edith, and that it is presented without the benefit of discussion or of any effort to recognize, distinguish or overrule earlier contrary cases. See The Stephen Allen, supra,; The Boston, supra; The President, supra. Further, we note that this cryptic paragraph has not been treated by this circuit as conclusive of the issue, see The Astoria, supra, nor has it been so viewed by at least one commentator. See Gilmore & Black, The Law of Admiralty 647-49. Most importantly we note that The Edith is factually different from the case before us. There, the claimant’s only interest in the vessel itself had been created and lost under state law. That claim, albeit of a maritime origin, was not such that a court of admiralty would have recognized it, independently of state law, as the basis of a lien. By contrast, we deal here with a claim whose origin is the performance of services which admiralty courts have long recognized as creating a very high order interest in the vessel.

Basically, The Edith and related cases stand for the propositions that a special interest in the vessel is required for participation in the proceeds of sale, that state law created no such interest in those cases, and that the claims were not such that an admiralty court would, independently of state law, recognize such an interest. We do not disregard those cases. Rather, we hold that appellant’s services were such that he acquired, despite his prematuré libel, an interest in the Buccaneer within the scope of The Lottawanna, supra. While this interest is of less stature than the ordinary maritime lien, it nonetheless is sufficient for appellant to take remnants and surplus ahead of the owner and his general creditors.

IV.

Rule 17(a), F.R.Civ.P., provides that “every action shall be prosecuted in the name of the real party in interest.” The district court concluded that, by virtue of the assignment of the salvage contract to Edgewater, appellant was not the real party in interest. On this basis it would deny any recovery. Appellant, on the other hand, argues that the case is governed by Rule 25(c), F.R.Civ.P., which provides that an existing action may continue in the name of the original party, despite transfer of his interest, until the court orders a substitution. Appellant points out that the transfer of interest was not formalized until two days after this suit was filed. The district court based its ruling on the finding that, “the filing of the suit and the sale to Edgewater appear to be part of a simultaneously arranged transaction, whichever came first.” We think this finding of fact insufficient to support dismissal on the basis of Rule 17(a):

Dismissal might be justified upon a finding that assignment occurred prior to filing, although even in that case it may be that the district court failed to comply with the requirement of Rule 17 (a) that, “no action shall be dismissed on the ground that it is not prosecuted in the name oí the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest.” Cf. American Dredging Co. v. Federal Insurance Co., S.D.N.Y., 1970, 309 F.Supp. 425, 429 (30 days to appear after court’s resolution of uncertain real party in interest question).

The district court stated that it had “no assurance that if it paid Veveriea money admittedly belonging to Edge-water, these funds would reach the non-appearing Edgewater.” We note that the district court could have just as effectively protected Edgewater by utilizing Rule 25(c) to order its joinder or substitution.

V.

The district court also concluded that salvage liens are extinguished by assignment. Assuming that appellant’s non-lien right to remnants and surplus is controlled by whatever rule governs assignability of liens, we disagree. There is no federal appellate authority on this issue. The court below relied on The George Nicholaus, E.D.La., 1853, 23 F.Cas. 333 (No. 13,578). That case in turn relied upon The A. D. Patchin, N. D.N.Y., 1850, 18 F.Cas. 1290 (No. 10,794), which dealt with seamen’s wage liens. We note that both of these eases date from a period when liens now readily assignable were sometimes thought to be extinguished by assignment. Compare The Napoleon, E.D.Wis., 1877, 17 F.Cas. 1150, 1152 (No. 10,011), with The Rupert City, W.D.Wash., 1914, 213 F. 263, 266, and The S. T. Evanthia, D. N.J., 1954, 1955 A.M.C. 340, 345-346. Further, we are not convinced by the lower court’s reasoning that, “It is undeniable that a salvor is highly compensated because of the risk to himself and his equipment, but a claim buyer who incurs no such risks must not expect a court to accord the same liberality.” In the first place, this smacks of an argument for reducing an award in pure salvage, where risk is important, see The Sabine, supra, not for entirely denying a claim of contract salvage. Second, The George Nicholaus and The A. D. Patchin are based on the premise that non-as-signability protects impecunious lienors against selling their rights at improvidently low prices. While this paternalism may have some justification as to wage claims, it seems quite irrelevant as to commercial salvors; indeed, a prohibition on assignment would seriously hamper salvage businesses which are short of working capital and which thus depend on prompt realization of accounts receivable to finance their operations.

Appellant’s other contentions are without merit and need not be discussed.

Affirmed in part, reversed in part, and remanded with direction that a judgment be entered awarding remnants and surplus to appellant.

      . Throughout this opinion we use the term “owner” to refer to the ship’s owner before the sale, Rebel Pipe & Supply Co., Inc.

      . Both the charterer, Buccaneer Drilling Co., and the owner are controlled by the same individuals. No issue has been raised as to the charterer’s authority to obtain services on the credit of the vessel.

      . This section of the ship mortgages chapter of 46 U.S.C.A. defines “preferred maritime liens”: “A lien . . . for salvage, including contract salvage.”

      . We note that 46 U.S.C.A. § 730 provides a two year period of limitations for salvage suits, and that the rules for ranking liens by their dates recognize the possibility of liens in excess of one year old. See Gilmore & Black, The Law of Admiralty 605-06.

      . The district court also ruled that even if appellant had an enforceable lien, it would be only for $28,000, despite the $75,000 figure in the contract. In reducing the claim to the amount for which it was assigned to Edge-water, the lower court relied on The Port Wayne, S.D.Ohio, 1861, 6 F.Cas. 119 (No. 3,012). In that case an agreed salvage contract was greatly reduced on a holding that prior lienholders, who are not parties to the agreement, are bound by it only to the extent it is reasonable. Given our treatment of this case, and the fact that remnants and surplus are less than $28,000, it is not necessary to consider the correctness of this ruling. We note however that it is premised on the existence and protection of prior maritime claims, and we thus assume that the district court did not intend that it affect such in personam rights as the parties may possess and hereafter seek to enforce.


author: PER CURIAM :

text:
    John H. WAMBLES, Plaintiff-Appellant, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, etc., et al., Defendants-Appellees. Doris I. RACHEL, Plaintiff-Appellant, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, etc., et al., Defendants-Appellees. Jimmy R. MOSLEY, Plaintiff-Appellant, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, etc., et al., Defendants-Appellees.
    No. 73-2018.
    United States Court of Appeals, Fifth Circuit
    Jan. 25, 1974.
    Robert G. Kendall, Edward B. Mc-Dermott, Mobile, Ala., for plaintiffs-appellants.
    Otto E. Simon, Mobile, Ala., L. N. D. Wells, Jr., Dallas, Tex., for defendants-appellees.
    Before COLEMAN, . AINSWORTH and GEE, Circuit Judges.
   PER CURIAM :

In these consolidated suits of several plaintiffs filed under the Labor-Management Reporting and Disclosure Act (sections 101(a)(1) and (2)), the material facts do not appear to be disputed, and the district judge held as a matter of law that summary judgment in favor of defendants was appropriate. We affirm these findings and conclusions on the basis of the well-reasoned opinion of Judge Pittman, which is appended hereto.

Affirmed.

ORDER

These actions were instituted pursuant to the Labor-Management Reporting and Disclosure Act, Title 29, Sec. 412, United States Code. Plaintiffs, former officers and employees of defendant Local 991, charge that defendant Morton R. Sherman, as agent for the International Brotherhood and Local 991, wil-fully, deliberately and maliciously discharged them from their positions with the Local in violation of Subchapter II (Bill of Rights of Members of Labor Organizations) of the Labor-Management Reporting and Disclosure Act, Title 29, Sec. 411, United States Code.

Most of the essential facts giving rise to this dispute are agreed upon by-the parties. In December, 1971, plaintiff Mosley and defendant Sherman were opposing candidates for the office of business manager of Local 991. Up to and including this time, Mosley and plaintiff Wambles occupied the positions of assistant business managers of the Local and plaintiff Rachel was bookkeeper. All were and had been members in good standing of the International Brotherhood and Local 991. It is alleged that Wambles and Rachel supported the candidacy of Mosley in the election. Sherman won the election and became the business manager of Local 991 at which time he discharged the plaintiffs from their respective positions.

The offices of the plaintiffs are not for a specified term. The Constitution of the Local and International each provides that they will serve, in effect, at the pleasure of the president.

“[The Secretary-Treasurer Business Manager] shall have the authority to hire and discharge all employees.” Constitution and By-Laws and Rules of Order for Teamsters, Chauffers, Warehousemen and Helpers Local Union 991, Article VIII, Sec. 3, p. 26. “Appointed Business Agents or appointed Assistant Business Agents may be removed at will by the appointing authority.” Constitution of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Article XXII, Sec. 8, p. 142.

There are two competing theories about whether a Union employee can be dismissed from office for his political activities. One is presented by Sheridan v. United Brotherhood of Carpenters, 306 F.2d 152 (3rd Cir. 1962), which states that dismissal is proper. The other is presented by Grand Lodge of Internat’l. Ass’n. of Machinists v. King, 335 F.2d 340 (9th Cir. 1964), which holds that dismissal for political activity is not allowed.

The Fifth Circuit has not had a case before it calling for a clear ruling on which theory it deems correct. The development of the law has been noted.

As a practical matter, the Union president should be able to work with those who will cooperate with his program and carry out his directives. It can be argued that an appointed office holder under the president who has opposed him in the election does not guarantee obstructionist policies while he serves in his position as an appointed Union official and that before the appointed official could be discharged for cause he would have to show an actual conflict of interest. This is a rather charitable view of persons recently involved in political conflict. A more realistic view would be that in a great majority of cases the friction generated in the election campaign would infect and seriously impede the successful candidate’s implementation of his program approved by the membership electing him.

To extend the protection of labor’s “Bill of Rights”, Section 101(a)(1) (29 U.S.C. Sec. 411(a)(1) and “Free Speech Rights”, Section 101(a)(2), U.S. C. See. 411(a)(2) to such office holders would, in effect, give such officer a lifetime job except on dismissal for cause. The elected officials necessarily rely on appointed officials to implement policies and plans presumably approved by the Union membership in the election. To tie the President’s hands, an elected official, by not allowing him to discharge without cause or for any reason those who must serve under him, would so restrict the elected officers in the discharge of their duties that elections could be meaningless. An appointed official should carry out the approved policies of the Union. His convictions and loyalties should be to the Union and not a personal fiefdom beyond the reach of the membership, here expressed by the appointive powers of its elected officers.

The dismissed officials worked against the election of the President, one of them ran against him, which means the President was opposed on personal grounds or policy grounds, but in either event, would create an intolerable situation for the elected official in implementing his programs on which he was elected.

To force the President to cast around for grounds to discharge appointed officials “for cause” would force the courts into a thicket of subtleties and hypocrisies of charges in an effort to ascertain whether or not the charges were bona fide or merely a cloak for dismissial for other reasons. In fact, it might well serve appointed officials, such as the plaintiff, to oppose any candidate for President that he might think would appoint someone in his place, therefore clouding the issue of “for cause” with a claim he was exercising his right of free speech.

Appointed officials certainly have the right to run for office, support or oppose any one of their choosing, pro-. mote or oppose any policy or program and not be discharged from membership in the Union or disciplined as a member, but it appears to me to go beyond the intent of the Act to freeze them in a job in which they serve not for a term, but at the pleasure of an elected official with appointive powers set out in the Unions’ Constitutions.

The elected official has the right to the personal loyalty and loyalty to his programs from those working under him.

If the Act intended to create a classified or civil service type structure, it could have easily so stated in explicit terms. It should not be read into the Act by the courts.

It is but a small step from a free speech right under this Act and dismissal only for cause to judicial construction by case law that the President of the United States cannot appoint his policy makers, not covered by classified service or term of office, except for cause on the ground that it would have a chilling effect on the First Amendment.

Therefore it is ordered, adjudged and decreed that the defendants’ motion for summary judgment in each case be, and is hereby, gránted.

Costs are taxed against the plaintiffs.

Done, this the 23 day of March, 1973.

/s/ Virgil Pittman

United States District Judge

      . Airline Maintenance Lodge 702„ IAM & AW v. Loudermilk, 444 F.2d 719 (5th Cir. 1971) ; Sewell v. Grand Lodge of IAM & AW, 445 F.2d 545 (5th Cir. 1971) ; and Fulton Lodge #2 of IAM & AW v. Nix, 415 F.2d 212 at 217 (5th Cir. 1969).


author: THORNBERRY, Circuit Judge:

text:
    The STATE NATIONAL BANK OF EL PASO, Trustee for Lee Moor Children’s Home, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant (two cases).
    Nos. 73-2106, 73-3751.
    United States Court of Appeals, Fifth Circuit.
    Jan. 25, 1974.
    Rehearing and Rehearing En Banc Denied Feb. 27, 1974.

      Scott P. Crampton, Asst. Atty. Gen., Ernest J. Brown, Acting Chief, App. Sec., Meyer Rothwacks, Atty., Tax Div., Dept, of Justice, Lee H. Henkel, Jr., Act. Chief Counsel, IRS, Fred A. Luyties, Michael L. Paup, Attys., Tax Div., Dept, of Justice, Washington, D. C., William W. Guild, Tax Div., Dept, of Justice, Dallas, Tex., Eugene G. Sayre, Atty., Tax Div., Dept, of Justice, Washington, D. C., Wm. S. Sessions, U. S. Atty., San Antonio, Tex., for defendant-appellant.
    Robert B. Zaboroski, El Paso, Tex., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and INGRAHAM, Circuit Judges.
   THORNBERRY, Circuit Judge:

Lee Moor Children’s Home (“taxpayer”) is a charitable trust, and the State National Bank of El Paso acts as its trustee. Taxpayer owns a large farm run by one Calhoun. The merits of this suit involve the question whether taxpayer’s income from the farm is taxable unrelated business income or tax exempt rent. The Government has brought this case to us in a gnarled procedural posture, however, and we are unable to reach the merits. We must remand for entry of a judgment.

I.

This case comprises two separate Government appeals that we have consolidated. The first appeal challenges the lower court’s decision on the merits, which was rendered in the form of a document entitled “opinion and judgment” and dated September 20, 1972. The Government’s first step toward appeal was an October 4 motion entitled “defendant’s motion for judgment notwithstanding the verdict, or in the alternative, for a new trial.” The district judge denied this motion on February 7, 1973, and the Government filed its notice of appeal on April 5,1973.

At that point the Government’s appeal contained a possibly fatal imperfection. The October 4 motion arguably had been filed too late, four days beyond the ten allowed by Rules 50(b) and 59(b) of the Federal Rules of Civil Procedure. To protect itself from this flaw the Government attacked the validity of the September 20 judgment, which had triggered the ten-day deadline.

The Government’s attack came in a motion to enter judgment which requested the district court to enter judgment on a separate document. Rule 58 re-' quires that “[e]very judgment shall be set forth on a separate document.” The trial judge had tacked his judgment on at the end of a memorandum opinion instead of placing it on an entirely separate piece of paper. The Government made its motion to enter judgment on June 15, 1973, and the district court rejected it in an order dated July 5. This order is the subject of the Government’s second appeal, which the bank urges us to dismiss on the theory that the order is not appealable. We have carried with the case the bank’s motion to dismiss.

Awaiting our decision, then, we have an appeal from a decision on the merits, an appeal from the order refusing to enter a judgment on a separate document, and a motion to dismiss the latter appeal. We shall discuss them in that order.

II.

’ In considering the first appeal, initially we must consider whether the September 20 decision satisfies Rule 58’s “separate document” requirement. The pertinent part of Rule 58 provides:

Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a).

Fed.Rules Civ.Proc. rule 58, 28 U.S.C.A. The bank argues logically that the judgment in this case was contained in a separate document, a document entitled “opinion and judgment.” In support of its position the bank cites Steccone v. Morse-Starrett Products Co., 9th Cir. 1951, 191 F.2d 197, in which the court held that a “memorandum opinion” similar to the document in the case at bar was a judgment that satisfied Rule 58.

The bank’s argument fails to recognize that the “separate document” requirement was added to Rule 58 in a 1963 amendment as a “ . . . ‘mechanical change’ that must be mechanically applied in order to avoid new uncertainties as to the date on which a judgment is entered.” United States v. Indrelunas, 1973, 411 U.S. 216, 93 S.Ct. 1562, 1565, 36 L.Ed.2d 202.

We have every reason to believe that a mechanical application of Rule 58 requires district judges to enter their judgments in one document and opinions in another. In its note following the proposed (1963) amendment to Rule 58 the Advisory Committee on Civil Rules described problems caused by parties’ inability to tell that a judgment has been entered and assessed the amendment’s contribution.

The amended rule eliminates these uncertainties by requiring that there be a judgment set out on a separate document- — distinct from any opinion or memorandum — which provides the basis for the entry of judgment. (Emphasis supplied.)

Judicial Conference of the United States, Report of Proposed Amendments to Certain Rules of Civil Procedure for the United States District Courts, 31 F.R.D. 621, 650 (1962). Likewise Professor Moore interprets “separate document” to mean “separate from an opinion or memorandum of the court.” 6A Moore’s Federal Practice ft 58.01 [1. — 2] at 58-14. See 11 C. Wright and A. Miller, Federal Practice and Procedure § 2785 at 14. Cf. Pure Oil Co. v. Boyne, 5th Cir. 1966, 370 F.2d 121. In. light of the Supreme Court’s guidance and these respected authorities’ advice we feel constrained to hold that Rule 58 requires a judgment separate and apart from an accompanying opinion. In the instant case, therefore, no judgment has been entered on the merits. And the court did not enter an appealable order when it denied the Government’s motion asking for a new trial or judgment n. o. v. 5A Moore’s Federal Practice |f 50.16 at 2387; 11 C. Wright and A. Miller, Federal Practice and Procedure § 2818 at 116; 6 A Moore’s Federal Practice If 59.15 at 59-267. See Thibaut v. Car and General Ins. Corp., 5th Cir. 1950, 181 F.2d 494. Therefore we must dismiss the Government’s first appeal for lack of an appealable order.

III.

In the Government’s second appeal, which challenges the district court’s order refusing to enter judgment on a separate document, the issue is whether that order is appealable. Two courts have faced this issue before, only to reach different results.

The Ninth Circuit believes that an order denying a motion to enter judgment is not appealable because it does not finally dispose of an entire controversy. Steccone v. Morse-Starrett Products Co., 9th Cir. 1951, 191 F.2d 197. In its view if one desires a recalcitrant judge to enter an order with that dispositive effect, his remedy is mandamus.

We prefer the First Circuit’s view, which says that an order refusing to enter judgment is appealable. In re Forstner Chain Corp., 1st Cir. 1949, 177 F.2d 572. There the court reasoned that such an order is a “final decision” and not interlocutory because the district judge regards it as final. He believes he has already entered a valid judgment; he intends to have nothing further to do with the case. It is true that he must perform another act (entry of judgment) if the -appellate court remands the case, but the same is true whenever a district court is reversed on appeal.

IV.

By way of review, we have found that the trial court has yet to enter a judgment on the merits, so we must dismiss the Government’s appeal from the decision entered September 20, 1972. In regard to the second appeal, the trial court’s refusal to enter a judgment is an appealable order properly before this court for review. We have concluded it was error to refuse to enter judgment on a document separate from the opinion. Consequently we remand this case with directions to enter judgment on a separate document. The bank’s motion to dismiss the second appeal is denied. Costs will be taxed to the Government.

Remanded with directions.

      . No. 73-2106.

      . Rule 4, Federal Rules of Appellate Procedure, gives an appellant sixty days after judgment to file his notice of appeal. It is obviously more than sixty days from September 20, 1972, to April 5, 1973. The sixty-day deadline is terminated by filing a timely motion for new trial or judgment n. o. v. But Rule 50(b) of the Federal Rules of Civil Procedure requires one to move for judgment n. o. v. within ten days after judgment; here appellant’s motion was filed October 4, fourteen days after the trial court’s “opinion and judgment.” Rule 59(b) is worded differently, requiring one to “serve” his motion for new trial within ten days of judgment. The Government argues that its motion was indeed served upon the bank within ten days, and that should suffice. We need not treat this argument because we have concluded that the September 20 decision is not a valid judgment.

      . No. 73-3751.

      . After oral argument appellee bank submitted two post-1963 cases to support its view that Rule 58, even as amended, is satisfied by a judgment contained in a memorandum opinion. The cases are Home Federal Savings and Loan Association v. Republic Insurance Co., 7th Cir. 1968, 405 F.2d 18, and Hamilton v. Nakai, 9th Cir. 1972, 453 F.2d 152. We fail to see that these cases lend the slightest support to the bank’s argument.

      . Indrelunas admittedly is distinguishable from this case. There the only “judgment” was the clerk’s civil docket entry, and in the instant case we have an “opinion and judgment” signed by the district judge. Nevertheless we find it significant that the Court commanded a mechanical application of the “separate document” requirement to avoid uncertainty, and we believe our holding comports with the spirit of Indrelunas.