text:
    UNITED STATES of America, Plaintiff-Appellee, v. Thomas Lamar LEWIS, Defendant-Appellant.
    No. 73-1953
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 10, 1973.
    Arthur J. Hanes, Sr., Birmingham, Ala. (court appointed), for defendant-appellant.
    Wayman G. Sherrer, U. S. Atty., J. Stephen Salter, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, 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:

Thomas Lamar Lewis had been convicted of bank robbery, 18 U.S.C., § 2113(a), (d). On appeal he challenges the sufficiency of the evidence to support the conviction and complains of the instructions upon which the jury decided his case.

Late in the afternoon of December 10, 1971, an armed, masked man robbed the Bank of Rainesville, Alabama. The robber first went to the Rainesville police station, where he took the assistant chief of police hostage by pointing a shotgun at his head. At gun point, the robber relieved the police officer of his gun and forced him to drive with him in a police car to the rear of the Bank. The two gained entrance to the Bank through a back door and proceeded to the lobby, where they stationed themselves in an area not reached by the photo-protection cameras. The robber directed the tellers to bring all the money to him, which was put into a sack that he carried. The employees were thereupon directed to lie on the floor and the robber departed in the police car, taking with him a female bank employee as hostage, who was soon released. While in the Bank, the robber threatened to kill the police officer and everyone present if they did not co-operate. The fruits of the robbery amounted to $25,887. At the time of the trial the money had not been recovered.

Since the robber wore a mask which concealed his face and also wore gloves which left no fingerprints, the prosecution sought to establish his identity by other considerations. The robber “lumbered” when he walked and had a peculiar nervous shift of the hips when standing still. Some of the bank employees testified that they knew the defendant and that he had the same peculiarities of walk and stance as did the robber. The government further proved that Lewis had stated on numerous occasions that if he was going to rob a bank he would do it late of a Friday afternoon, that he would take a police officer hostage prior to the robbery, that he would take a teller with him to insure his escape, and that he would use the police car as the get-away vehicle.

A former co-employee of the defendant testified that on the day of the robbery he had a long gun and a woman’s nylon stocking on the back seat of his car. When asked about these items, Lewis stated that he was going to rob the bank that afternoon.

In the presence of others a few weeks before the robbery, Lewis drew a diagram of the interior of the Rainesville bank and indicated where to stand in order to avoid the guard cameras. His former wife testified that one day while washing she found a diagram of the bank in Lewis’ pockets. Upon confrontation, he seized the diagram, tore it up and told her to mind her own business.

On one occasion, the defendant brought a shotgun to his place of employment and when asked if it was the weapon used in the robbery responded in the affirmative.

The FBI searched a loft over the defendant’s work area, into which he had been seen entering on several occasions through the women’s restroom. He thereafter stated that the FBI very near stepped on the money which was hidden under some insulation.

In Hendrix v. United States, 5 Cir., 1964, 327 F.2d 971, it was held that while considerations of identity are ordinarily for the jury, and testimony as to identity need not be positive and certain, there must be something more than testimony of a resemblance. This is undoubtedly a sound rule of law, calculated to prevent the unjust conviction of some individual simply because he may bear a resemblance to the true culprit. In the case now before us, however, the proof for the prosecution did not stop with resemblance, but proceeded with the highly incriminating circumstances herein described. The evidence was such as to support the conclusion of a reasonably-minded jury that Lewis had, beyond a reasonable doubt, been the actual'robber, United States v. Knox, 5 Cir., 1972, 458 F.2d 612.

The appellant also argues that it was reversible error for the trial Court not to instruct the jury, in so many specific words, that the identification of the defendant had to be established beyond a reasonable doubt. In this case identity was not based on an in-court identification possibly tainted by the suggestiveness of an out of court line-up or show-up [Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)]. Judge Allgood gave extensive instructions on the proof required to convict in a circumstantial evidence case. This was followed by supplemental instructions on circumstantial evidence after the jury had requested such. This case went beyond resemblance to include admissions and other highly incriminating evidence. Moreover, there was no objection at the conclusion of the charge, Rule 30, F.R.Cr.P.

We are of the view that the Judgment of the District Court should be, and it is,

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Guy F. BROWN, Appellant, v. Donald HARTNESS, Assistant Superintendent, Missouri Training Center, et al., Appellees.
    No. 73-1392.
    United States Court of Appeals, Eighth Circuit.
    Oct. 4, 1973.
    Eric V. Lemon, St. Louis, Mo., for appellant.
    John C. Danforth, Atty. Gen., and Karen I. Harper, Asst. Atty. Gen., Jefferson City, Mo., for appellee.
    Before GIBSON, LAY and STEPHENSON, Circuit Judges.
   PER CURIAM.

Appellant Guy F. Brown, brought an action in forma pauperis against the assistant superintendent of the Missouri Training Center for Men at Moberly, Missouri and against three employees of the training center mail room. Brown alleged that the action of these individuals in refusing to allow the mailing of certain Christmas cards and in preventing correspondence with the Columbia, Missouri newspaper violated his civil rights protected by the First, Fourth, Eighth, and Fourteenth Amendments to the United States Constitution. 42 U.S.C. §§ 1983 and 1985. The relevant facts are set out in the trial courts memorandum and order dismissing the complaint for failure to state a claim upon which relief could be granted reported at 358 F.Supp. 253 (E.D.Mo.1973). This Court granted Brown permission to appeal in forma pauperis and appointed counsel.

We have thoroughly reviewed the record and briefs in this case while screening cases for assignment to the calendar of this Court. We reverse and remand for an evidentiary hearing.

Courts are reluctant to interfere with prison administration, regulations and discipline. Moore v. Ciccone, 459 F.2d 574, 576 (CA8 1972); Lee v. Tahash, 352 F.2d 970, 971 (CA8 1965). Nevertheless, we think that allegations smacking of First Amendment deprivation are sufficient to call for the offering of supporting evidence. Remmers v. Brewer, 475 F.2d 52 (CA8 1973).

Remmers claimed a • violation of his First Amendment rights by not being allowed to have an article published without fear of physical retaliation by prison authorities. We said at 475 F.2d 53:

An evidentiary hearing should be held in this ease to determine (1) what the prison rules and practice are in regard to expression and publication of prisoner’s view points; (2) whether those rules and practice are in derogation of the first amendment rights of the prisoners; and (3) if the rules and practice are constitutionally permissible, whether they are correctly applied to Remmers in this case.

In addition, this Court recently pointed out in McDonnell v. Wolff, 483 F.2d 1059, at 1067 (CA8, filed August 2, 1973):

Prison authorities must show that the regulation of an inmate’s right to send and receive mail furthers a substantial interest, and that the incidental restrictions placed on an inmate’s rights are no greater than essential to further that interest.

In view of the foregoing it cannot be said that the allegations set forth by Brown in his pro se complaint demonstrate “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972).

Therefore, while expressing no view on the ultimate merits of Brown’s complaint, we conclude that he is entitled to an evidentiary hearing.

Reversed and remanded.

      . 8th Cir. R. 6(1).

      . 8th Cir. R. 9(a).


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Johnnie ANDERSON, Jr., and Mary Knowles Anderson, Defendants-Appellants.
    No. 73-1899
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 10, 1973.

      Theodore Klein, Miami, Fla., Court appointed for defendants-appellants.
    Robert W. Rust, U. S. Atty., Harold F. Keefe, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

We affirm the conviction of these two defendants on various counts of knowing and intentional possession of heroin with intent to distribute.

(1) The flower bed outside the house was part of the residence described in the search warrant as 1209 Avenue Q, Apartment B, this being a duplex house with its own grounds and dissimilar to the hotel, store and apartment houses in the cases upon which appellants rely.

(2) Defendants were properly joined under Rule 8(b), Federal Rules of. Criminal Procedure. Denial of a motion for severance was not an abuse of the discretion reposed in the trial court in such matters.

(3) Any possible error concerning the unobjected to, volunteered hearsay testimony was rendered harmless beyond a reasonable doubt in view of the total evidence produced at trial.

Affirmed.


author: WILLIAM E. DOYLE, Circuit Judge.

text:
    Marvin Spencer JOHNSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 72-1702.
    United States Court of Appeals, Tenth Circuit.
    July 19, 1973.

      Gregory H. Fess, Littleton, Colo. (Jay L. Gueck, Denver, Colo., on the brief), for plaintiff-appellant.
    Richard A. Stacy, Asst. U. S. Atty., D. Wyo. (Richard V. Thomas, U. S. Atty. and Tosh Suyematsu, Asst. U. S. Atty., D. Wyo., on the brief), for defendantappellee.
    Before HILL, JONES  and DOYLE, Circuit Judges.

       Of the Fifth Circuit, sitting by designation.

   WILLIAM E. DOYLE, Circuit Judge.

Appellant filed a motion in the district court pursuant to 28 U.S.C. § 2255 seeking an order to vacate or reduce sentence. The requested relief was denied, and this is an appeal from that judgment.

The contentions here are first, that the district court was guilty of an abuse of discretion in refusing to allow the appellant to withdraw his plea of guilty; secondly, that the appellant was inadequately represented by counsel at the trial; and, thirdly, that the appellant’s constitutional rights were violated as a result of the court’s denying him the right to view the presentence report. We conclude that none of these contentions have merit.

Appellant was arrested in Cheyenne, Wyoming on July 3, 1969, incident to falsely endorsing four United States Treasury checks. On the subsequent arraignment which occurred on July 14, 1969, indictment was waived, an information was filed and appellant entered a plea of guilty to each of the four counts. Subsequently, a presentence investigation was conducted, a report was furnished and the defendant was sentenced to concurrent terms of imprisonment of four years.

Appellant made an application for withdrawal of his plea of guilty prior to the imposition of sentence. However, this application was denied. We perceive no error in this denial since the matter rests within the discretion of the trial court. Unless it appears that ,the court acted unjustly or unfairly, there is no abuse of discretion. See Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 71 L.Ed. 1009 (1927); Dorton v. United States, 447 F.2d 401 (10th Cir. 1971). Nor do we see any merit to the contention that the appellant was inadequately represented since it cannot be said that the representation was perfunctory, in bad faith, a sham, a pretense or without adequate opportunity for conference or' preparation. Ellis v. State, 430 F.2d 1352 (10th Cir. 1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1260, 28 L.Ed.2d 546 (1971); Goforth v. United States, 314 F.2d 868 (10th Cir. 1963). Appellant’s dissatisfaction with appointed counsel dates from sometime after the sentence was imposed. Prior thereto he was not dissatisfied, and the related question that the plea of guilty should have been appealed is also without merit. Appellant entered a plea of guilty and there is no indication that an appeal was considered appropriate. See Cascio v. United States, 429 F.2d 581 (9th Cir. 1970); Lewis v. United States, 111 U.S.App.D.C. 13, 294 F.2d 209 (1961), cert. denied, 368 U.S. 949, 82 S.Ct. 390, 7 L.Ed.2d 344 (1961).

Finally, it is contended that the denial of appellant’s right to view the presentence report violated his constitutional rights. The standard prescribed by Rule 32(c), Federal Rules of Criminal Procedure, for submission of the presentence report is one of court discretion. It has been held that this is not a question of constitutional dimension. United States v. Stidham, 459 F.2d 297 (10th Cir. 1972); Thompson v. United States, 381 F.2d 664 (10th Cir. 1967).

At bar the district court reviewed with the defendant his past criminal record as shown by the probation report and allowed him to explain or elaborate this material; in the subsequent post conviction hearing the court stated that it did not rely on any prior convictions, valid or invalid, in pronouncing sentence. We regard this as conclusive. See United States v. DeVore, 423 F.2d 1069 (4th Cir. 1970), cert. denied, 402 U.S. 950, 91 S.Ct. 1604, 29 L.Ed.2d 119 (1971); United States v. Trice, 412 F.2d 209 (10th Cir. 1969).

We have examined United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), and the position we now take is entirely consistent with the Tucker decision. There the court actually relied on two convictions which were later held to be invalid. Since it was clear that the district court had relied on these sentences, the Court of Appeals for the Ninth Circuit posed the possibility that a heavier sentence resulted and remanded for resentencing. The Supreme Court affirmed, holding that resentencing is required where there is misinformation of constitutional dimension and this misinformation is given specific consideration by the sentencing judge.

Tucker does not require that the defendant have access to the presentence report. In this case the court communicated to the defendant the information contained in the presentence report. This would tend to avoid the problem which was present in Tucker. Tucker considered in this context requires no more than this.

We find no basis for complaint here. Accordingly, the judgment of the district court is affirmed.


author: BARRETT, Circuit Judge.

text:
    Mary Lee GREEN and Tempsie Fisher, Individually and for all others similarly situated, Complainants, Appellees, v. Reginald B. BARNES, Chairman Oklahoma Public Welfare Commission, et al., Respondents, Appellants.
    No. 73-1240.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Sept. 10, 1973.
    Decided Oct. 5, 1973.

      Stan L. Foster, Legal Aid Society of Oklahoma City, (Mrs. Arthur Lory Rakestraw and Diane Harn, Legal Aid Society of Oklahoma City, Okl., on the brief), for complainants, appellees.
    Raymond J. Totoro, and James H. Gray, Asst. Atty. Gen., Oklahoma City, Okl. (Larry Derryberry, Atty. Gen., and Lee Vernon, Oklahoma City, Okl., on the brief), for respondents, appellants.
    Before PICKETT, BREITENSTEIN and BARRETT, Circuit Judges.
   BARRETT, Circuit Judge.

Mary Lee Green and Tempsie Fisher brought this suit challenging an Oklahoma welfare regulation making them ineligible for public assistance under the State of Oklahoma’s program of Aid for Dependent Children. The trial court enjoined the Oklahoma Public Welfare Commission from enforcing its regulation because it conflicts with the Federal Social Security Act and violates the Supremacy Clause, the Equal Protection and Due Process Clauses of the United States Constitution.

The State regulation, Department of Welfare Manual, 331.12(A), Paragraph 2, reads as follows:

Real estate owned and used as shelter by the applicant or client is exempt in determining eligibility for assistance, so long as the property does not exceed 40 acres and the market value does not exceed $10,000.

Fisher and Green each own homes with a market value of $16,000.00. However, the homes are mortgaged to the extent that neither has over $160.00 equity in them.

The Oklahoma Public Welfare Commission (Commission) alleges that: (1) the State regulation does not violate the Supremacy Clause; (2) a limitation on the market value of exempt property as a condition of eligibility is not discriminatory and does not violate the Fifth or Fourteenth Amendments; and (3) the trial court judgment is not supported by law.

We hold that the State regulation violates the Supremacy Clause. We affirm the trial court’s judgment.

42 U.S.C.A. § 602(a) (7) of the Social Security Act states in part:

(a) A State plan for aid and services to needy families with children must .
(7) except as may be otherwise provided in clause (8), provide that the State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children, or of any other individual . . . whose needs the State determines shall be considered in determining the need of the child or relative claiming such aid, as well as any expenses reasonably attributable to the earning of any such income;

The HEW’s regulation interpretive of the above cited statute reads as follows:

(c) only such net income as is actually available for current use on a regular basis will be considered, and only currently available resources will be considered; (Emphasis ours)
45 CFR 233.20(a) (3) (ii)(c), 34 Fed. Reg. 1395.

The Secretary of HEW is empowered to promulgate regulations consistent with the Act. 42 U.S.C.A. § 1302. We find nothing in the HEW regulation which is inconsistent with the Social Security Act.

Following oral arguments the Commission filed a supplemental pamphlet citing proposed amendments to 45 CFR 233.20(a) (3) (i) and (ii), indicating that they may have become effective August 8, 1973. The Commission contends that the proposed amendments support its arguments urged here. In view of the fact that the “proposed” amendments will not become effective until January 1, 1974, if in fact adopted, we need not consider them. We believe, however, that the proposed amendments support the trial court’s holding that the State regulation is in conflict with the federal law.

The State regulation exempts a home so long as the market value does not exceed $10,000.00; however, it does not take into consideration the outstanding balance of any mortgage or encumbrance on a home with a market value over $10,000.00. Clearly, only currently available resources are to be considered in determining eligibility for, and the amount of, AFDC aid entitlement. In determining eligibility for assistance, the currently available resource in a house with a market value over $10,000.-00 is only the equity in the home. See 45 CFR 233.20(a) (3) (ii) (c), supra.

This rationale is in conformance with a three-judge ruling in Wilczynski v. Harder, 323 F.Supp. 509 (D.Conn.1971). The Court there held that Connecticut’s limitation for eligibility for Medicaid conflicts with the federal law insofar as it requires the recipient to value insurance policies at face value rather than cash surrender value. The Court held that to qualify as “available” resources, they must be in hand, readily liquidated, or under control of the individual. Applying this criteria, the Court held that the value of the insurance policies in determining welfare eligibility is their cash surrender value.

The trial court was correct in ruling that the State regulation violates the Supremacy Clause of the United States Constitution. The Commission is enjoined from enforcing it.

Affirmed.

      . This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . shall be. the supreme Law of the Land; U.S.C.A.Const. Art. VI, cl. 2.


text:
    Thomas J. PIPER, Jr., Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 73-2320
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 27, 1973.
    Thomas J. Piper, Jr., pro se.
    Dunklin Sullivan, Asst. Atty. Gen., Austin, for respondent-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N.Y., 431 F.2d 409, Part I (5th Cir. 1970).

   PER CURIAM:

The instant appeal arises from the denial of a writ of habeas corpus. While on parole from a 1961 Texas conviction, Thomas J. Piper was charged by the State of Texas with robbery by assault. A separate federal prosecution for violations of the firearms registration laws grew out of the same activity. Piper was convicted and sentenced on both the state and federal charges. Texas, which had revoked Piper’s parole immediately after his arrest on the robbery charge, released him to federal custody to permit him to begin serving the firearms sentence. Thereafter, a detainer was filed with federal authorities to require his ultimate return to Texas to complete the service of the remainder of the 1961 sentence from which he had been paroled and to serve the new sentence for robbery by assault. Piper claims here that so much of the detainer as relates to the completion of service of his 1961 sentence is void. He argues that both by their action and inaction Texas officials have waived jurisdiction over him as to his former conviction within our holding in Shields v. Beto, 370 F.2d 1003 (5th Cir. 1963). We affirm the order of the district court holding that this case is not within Shields.

Shields v. Beto was not intended to constitute a trap for unwary state officials. It is founded upon the due process clause of the Fourteenth Amendment and requires that “action by a state through any of its agencies must be consistent with the fundamental principles of liberty and justice” Shields at 1004. The facts in Shields are not at all analogous to those in the case at bar. Before expiration of the Texas sentence he was then serving, Shields had been extradited to Louisiana to complete a jail term. Texas filed no detainer, and Shields was ultimately released on parole in Louisiana. Eighteen years after his release and 28 years after his extradition to Louisiana, Texas sought to compel Shields to serve the remainder of his Texas sentence. We held that under these circumstances Texas had demonstrated such a lack of interest in Shields as to waive jurisdiction over him.

In cases based upon the principles of Shields it is not sufficient to prove official conduct that merely evidences a lack of eager pursuit or even arguable lack of interest. Rather the waiving state’s action must be so affirmatively wrong or its inaction so grossly negligent that it would be unequivocally inconsistent with “fundamental principles of liberty and justice” to require a legal sentence to be served in the aftermath of such action or inaction.

Piper alleges that there are three manifestations of lack of interest in him by Texas: (1) refusal to return him to the Department of Corrections to complete his 1961 sentence immediately after the revocation of his parole; (2) failure to file a detainer against him until 22 months after his parole revocation; and (3) a statement by a Texas official to a United States Attorney that Piper’s parole had not been revoked when it in fact had been. Reliance on (2) and (3) is misplaced. There was no reason to file a detainer until Piper’s release from federal custody was imminent, and the statement urged upon us proves little more than an administrative mistake by some Texas official. Thus, we are left with (1). Even assuming that Piper is correct in concluding that Texas law requires the immediate return of a prisoner to the Department of Corrections upon revocation of his parole, the failure to follow that procedure here presents no federal constitutional basis for voiding his prior sentence. Any claim that such conduct constituted a lack of interest of the dimensions present in Shields is ridiculous. See Mills v. Beto, 477 F.2d 124 [5th Cir. 1973]; Dorrough v. Texas, 440 F.2d 1063 (5th Cir. 1971); and Bilton v. Beto, 403 F.2d 664 (5th Cir. 1968).

Piper also argues that Shields is applicable any time one sovereign surrenders a prisoner to another sovereign while the prisoner is serving a sentence of the surrenderer. Even assuming such a holding would somehow raise issues of constitutional dimensions, Shields establishes no per se rule which substitutes for analysis of the facts of each case in light of the requirements of due process.

Affirmed.

      . Vernon’s Ann.Tex.Code Crim.Pro. art. 42.01 et seq. (1966).

      . It is an established rule that a prisoner has no standing to attack agreements between sovereigns as to the order in which sentences are to be served. DeLong v. United States, 474 F.2d 719 (5th Cir. 1973) ; Chunn v. Clark, 451 F.2d 1005 (5th Cir. 1971).


author: JAMES M. CARTER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Wayne Wilburn MAYNARD, Defendant-Appellant.
    No. 73-1928.
    United States Court of Appeals, Ninth Circuit.
    Oct. 2, 1973.
    Harry E. Claiborne (argued), Annette R. Quintana, Atty., Las Vegas, Nev., for defendant-appellant.
    Lawrence J. Semenza, Asst. U. S. Atty. (argued), V. DeVoe Heaton, U. S. Atty., Las Vegas, Nev., for plaintiff-appellee.
    Before CARTER and GOODWIN, Circuit Judges, and EAST, District Judge.

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

   OPINION

JAMES M. CARTER, Circuit Judge:

This is an appeal from the denial of a motion to modify a sentence under Rule 35, F.R.Crim.P. We affirm.

The defendant Maynard was convicted of concealing assets in a bankruptcy proceeding. After a pre-sentence report he was sentenced to three years imprisonment, pursuant to 18 U.S.C. § 4208(a) (2). Under that section he was eligible for parole at such time as the Board of Parole might determine. The judgment was affirmed on appeal, and Maynard was imprisoned on January 15, 1973.

On April 4, 1973, Maynard moved the sentencing court under Rule 35 for a reduction or revision of his lawful sentence. He further moved the court to order the prison warden to prepare and submit a report on Maynard’s behavior since his imprisonment. Without ordering the report, and without holding a hearing, the district court denied the Rule 35 motion.

Maynard contends that the summary denial of the motion was in violation of his constitutional rights under the fifth and sixth amendments. He contends that the district court, by refusing to order the preparation and submission of a post-incarceration report, denied him due process. Since the Rule 35 motion was based entirely on an anticipated favorable report, he argues that a failure to consider the report is tantamount to a failure to consider the Rule 35 motion. This argument, however, misconceives the nature of Rule 35.

If a lawful sentence was lawfully imposed in the first instance, then the function of Rule 35 is simply to allow the district court to decide if, on further reflection, the original sentence now seems unduly harsh. The motion is directed to the court’s discretion (Flores v. United States (9 Cir. 1956) 238 F.2d 758, 760) and is essentially a “plea for leniency.” Poole v. United States (1957) 102 U.S.App.D.C. 71, 250 F.2d 396, 401. Ordinarily, no hearing is required. United States v. Krueger (9 Cir. 1972) 454 F.2d 1154.

The court had thorough knowledge of Maynard’s relevant history when imposing the original sentence and apparently now believed that a report, regardless of how glowing a picture it might paint of Maynard’s behavior in prison, could not alter the discretionary decision that a sentence of three years was apt. If every prisoner who alleged good behavior were entitled to have a warden prepare and submit a report to the court, the burden on the warden would be overwhelming and the court would be taking on the function of a parole board. Surely 18 U.S.C. § 4208(a)(2), under which Maynard was sentenced, reflects the sound policy that good behavior by a prisoner is chiefly for the Board of Parole to consider, not the judge.

We need not decide whether the sixth amendment applies to a post-prosecution proceeding under Rule 35, for even if it does, its guarantee is not absolute. A motion to have a witness or document produced at government expense is addressed to the sound judicial discretion of the court, the court having a duty to prevent useless process. Murdock v. United States (10 Cir. 1960) 283 F.2d 585, 587, cert. denied, 366 U.S. 953, 81 S.Ct. 1910, 6 L.Ed.2d 1246 (1961).

We affirm.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Cecil J. BISHOP, Defendant-Appellant.
    No. 71-1950.
    United States Court of Appeals, Ninth Circuit.
    Sept. 18, 1973.

      J. Richard Johnston (argued), Robert H. Solomon, Johnston, Klein, Horton & Solomon, Oakland, Cal., for defendant-appellant.
    John P. Burke (argued), Scott P. Crampton, Asst. Atty. Gen., Fred B. Ugast, Acting Asst. Atty. Gen., Tax Div., Dept. of Justice, Washington, D. C., John P. Hyland, U. S. Atty., Sacramento, Cal., John J. Kilgariff, Meyer T. Rothwacks, Richard B. Buhrman, Joseph H. Reiter, Tax Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.
    Before ELY and WRIGHT, Circuit Judges, and POWELL, District Judge.

       Honorable Charles L. Powell, Senior United States District Judge for the Eastern District of Washington, sitting by designation.

   PER CURIAM:

This case has previously been before this court. United States v. Bishop, 455 F.2d 612 (9 Cir. 1972). Certiorari was granted. 409 U.S. 841, 93 S.Ct. 64, 34 L.Ed.2d 79. The decision was reversed and the case remanded. 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973). The remand directs consideration of two claims of error not reached in the prior disposition. They are that: (1) The court erred in admitting evidence as to the appellant’s 1961 income tax return (the charges in the indictment involved returns for the years of 1963, 1964 and 1965); and (2) the court erred in admitting evidence that the taxpayer reported an item of income in his 1964 return that was not received until 1965.

The 1961 return was admitted to show a pattern of overstatement of deductions. (Tr. 508-517, 600, 623-626). Internal Revenue Agent Beyers testified (Tr. 601-608) about certain non-allowable deductions in 1961 that were similar to deductions proven improper for the years of the indictment. No prejudicial error appears here.

The 1965 income item was shown to have been reported in the 1964 return only to show knowledge and wilfulness by the defendant and was not offered or admitted as proof of defendant’s overstatement of expenses. (Tr. 505-507).

On the Supreme Court mandate and finding no error in the claims reviewed above, the conviction of the appellant is affirmed.


text:
    Gary Del GLOVER, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 73-2046
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 27, 1973.
    Gary Del Glover, pro se.
    Lang A. Baker, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

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

   PER CURIAM:

In its consideration of this state prisoner’s habeas petition, the district court neither held an evidentiary hearing nor had before it the record of petitioner’s trial, or at least the state record was not introduced into evidence. That court has thus failed to conduct its required independent inquiry into the petitioner’s constitutional claims. See Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770. Its judgment is therefore vacated and the case is remanded for further consideration.

      . The matter was handled by a magistrate whose findings, conclusions and recommendation were adopted by the district court. The clerk of the district court has advised this court that all state court materials filed as exhibits in district court were transmitted to this court. The state trial record is not among these exhibits.


text:
    John Frederick BARTELT, Petitioner-Appellant, v. Hon. Ernest GUINN, District Judge, U. S. District Court for the Western District of Texas, Respondent-Appellee.
    No. 72-2235
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 15, 1973.

      Carl B. Lee, (Court-Appointed), Dallas, Tex., for petitioner-appellant.
    William S. Sessions, U. S. Atty., Ronald F. Ederer, Asst. U. S. Atty., El Paso, Tex., for respondent-appellee.
    Before GEWIN, COLEMAN and MORGAN, 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:

John Frederick Bartelt filed a motion to vacate sentence, 28 U.S.C., § 2255, alleging that his retained counsel had failed to file and prosecute a direct appeal from a criminal conviction despite assurances that such would be done. The motion was denied without a hearing and Bartelt appeals.

Upon examination of the record, we find that an evidentiary hearing should have been held, with appropriate findings of fact and conclusions of law, Atilus v. United States, 5 Cir., 1969, 406 F.2d 694; Fuentes v. United States, 5 Cir., 1972, 455 F.2d 910; Powers v. United States, 5 Cir., 1971, 446 F.2d 22; Gallegos v. United States, 5 Cir., 1972, 466 F.2d 740; Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969).

The judgment of the District Court is accordingly vacated and‘the cause remanded for a full evidentiary hearing on the motion, at which time petitioner will be allowed to testify and, as an indigent, will be allowed appointed counsel.

Vacated and remanded.


text:
    In the Matter of Disciplinary Proceedings, Alvin S. MICHAELSON, Esq., United States of America, v. Antonio SEDILLO.
    No. 73-2215.
    United States Court of Appeals, Ninth Circuit.
    Sept. 6, 1973.
    William D. Keller, U. S. Atty., Eric A. Nobles, Michael T. Kenny, Asst. U. S. Attys., Los Angeles, Cal., for appellant.
    Alvin S. Michaelson, Los Angeles, Cal., for appellee.
    Before CHAMBERS and DUNIWAY, Circuit Judges, and SCHWARTZ, District Judge.

       The Honorable Edward J. Schwartz, United States District Judge from the Southern District of California, sitting by designation.

   ORDER

After a hearing, Alvin S. Michaelson, counsel of record for the appellant, is assessed a penalty of $172.80, the cost to the United States for the transcript of evidence, for failure to prosecute the appeal with due diligence.

The payment is to be made within fourteen days into the Registry of the Clerk of the United States District Court for the Central District of California.


author: EUGENE A. WRIGHT, Circuit Judge:

text:
    James J. OPPEN et al., Plaintiffs, Arthur J. Luck and Glenn A. Henry, Plaintiffs-Appellants, v. AETNA INSURANCE CO. et al., Defendants, Union Oil Co. of Calif., et al., Defendants-Appellees.
    No. 71-1136.
    United States Court of Appeals, Ninth Circuit.
    Sept. 20, 1973.

      James J. Oppen (argued), Santa Barbara, Cal., for plaintiffs-appellants.
    Max K. Jamison (argued), Mc-Cutchen, Black, Verleger & Shea, Richard B. Goethals (argued), Schell & Delamer, Girard E. Boudreau, Jr. (argued), Allyn O. Kreps, A. Robert Pisano, Richard H. Zahm, Douglas C. Gregg, George C. Bond, Sam A. Snyder, O’Melveny & Myers, Roger A. Ferree, Robert K. Wrede, Alfred T. Smith, McCutchen, Black, Verleger & Shea, Walter O. Schell, Thomas J. Kelley, Jr., Miles W. Newby, Jr., B. J. Roose, Schell & Del amer, Los Angeles, Cal., for defendants-appellees.
    Before HAMLEY and WRIGHT, Circuit Judges, and POWELL, District Judge.

       Senior District Judge, Eastern District of Washington.

   EUGENE A. WRIGHT, Circuit Judge:

In this appeal we must decide whether plaintiffs may recover certain damages caused by the Santa Barbara oil spill disaster of 1969. Preliminary questions are whether general maritime law applies to plaintiffs’ claims and, if so, whether the application of maritime law precludes the plaintiffs from recovering under state law. A panel of three special masters took the evidence by stipulation and concluded that the claims involved should be determined by reference to maritime law, that the maritime remedy was exclusive, and that under maritime law plaintiffs’ damages were not compensable.

Subsequently, the Supreme Court substantially altered what had theretofore been the standard used by lower federal courts in determining whether a tort was a maritime one, Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972) and also broadened the power of the states to apply their own laws to certain maritime torts occurring within their territorial waters, Askew v. American Waterways Operators, Inc., 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973). This court asked the parties for additional briefs considering the effect of those decisions. We now conclude that the decision of the special masters was correct and the judgment of the district court entered thereon should be affirmed.

I.

On January 28, 1969 large amounts of crude oil escaped from the ocean floor underneath and near Platform “A” maintained by appellee Únion Oil Company of California (Union) for the benefit of itself and other oil companies, Platform “A” was on the outer Continental Shelf of the United States in the Santa Barbara Channel. Escaping oil floated to the surface of the ocean and was carried by wind and tide until it virtually permeated- the waters of the Santa Barbara Channel and harbor.

Not surprisingly, many lawsuits were brought against the oil companies and their insurers. Certain of these suits brought in the United States District Court for the Central District of California were, by stipulation, consolidated under the caption “Oppen v. Union Oil Co. of California, Civil No. 69-576-ALS.”

The parties to the consolidated action agreed to proceed before the special masters with the trial of the claims of seven representative boat owners in order to obtain rulings on certain legal issues prior to trial of the other claims. Before this hearing could be held five of the boat owners’ claims were settled.

Trial was held on the claims of the other two owners, appellants Henry and Luck. Each owned a private pleasure boat which had sustained physical damage from contact with the oil slick. The boats had also been rendered unusable in the Santa Barbara Channel for a period of time as a result of the spill. The special masters concluded that federal maritime law was applicable to the plaintiffs’ claim and thereunder loss of use of a private pleasure craft was not a compensable item of damage. A judgment was rendered accordingly and the district court granted leave to appeal that we might render an opinion prior to the trial of the remaining claims.

II.

Plaintiffs’ initial contention was that California law applied to their claims by virtue of the Outer Continental Shelf Lands Act (“Lands Act”), 43 U.S.C. § 1301 et seq. and Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 363 (1969). In our view plaintiffs read too much into the statute and the decision.

Section 1333(a) of Title 43 provides: “(1) The Constitution and laws and civil and political jurisdiction of the United States are extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands and fixed structures which may be erected thereon for the purpose of exploring for, developing, removing, and transporting resources therefrom, to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State . . ..
“(2) To the extent that they are applicable and not inconsistent with this subehapter or with other Federal laws and regulations of the Secretary now in effect or hereafter adopted, the civil and criminal laws of each adjacent State as of August 7, 1953 are declared to be the law of the United States for that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon, which would be within the area of the State if its boundaries were extended seaward to the outer margin of the outer Continental Shelf . . ..”

In Rodrigue the Supreme Court was faced with the question of whether the Death on the High Seas Act or the Louisiana wrongful death statute applied to suits resulting from two accidents occurring on fixed platforms on the outer Continental Shelf off the Louisiana coast.

Both accidents had their primary locus on fixed platforms. In one the decedent was performing a test high on a derrick rising above the platform and fell to his death on the floor of the structure. In the other the decedent was working on a crane mounted on the platform and being used to unload a barge. As the crane lifted a load from the barge it collapsed and toppled over onto the barge, killing the worker.

In both cases the Court held that under admiralty principles the Seas Act did not apply. Therefore there was no federal law inconsistent with the Louisiana wrongful death statute and, by virtue of the Lands Act, the latter applied. The Court went on to state categorically that federal maritime law had no more application to accidents occurring on these fixed structures than it would to accidents occurring on natural islands or on piers extending from the mainland. 395 U.S. at 366, 89 S.Ct. 1835.

It is clear that the Court by its holding in Rodrigue did not intend to imply that every occurrence arising out of operations conducted on a fixed platform attached to the outer Continental Shelf would necessarily be governed by state law rather than federal maritime law.

There are well recognized situations where admiralty jurisdiction and maritime law apply to a tort whose locus is on land. For example, the Admiralty Extension Act provides that admiralty jurisdiction applies to any injury caused by a vessel on navigable water though the injury may be consummated on land. And in Continental Oil Co. v. London Steam-Ship Owners’ Mutual Ins. Ass’n, 417 F.2d 1030 (5th Cir. 1969), the court found that the Louisiana Direct Action Statute was not applicable to a suit arising from the collision of an oceangoing vessel with a fixed drilling platform on the outer Continental Shelf. Although by traditional standards, the “locus” of the tort was on the platform, the court found that the Admiralty Extension Act placed this tort within admiralty jurisdiction and that federal maritime law rather than state law applied.

See also Kimble v. Noble Drilling Corp., 416 F.2d 847 (5th Cir. 1969), where the court held that the Jones Act applied to a seaman injured on an offshore drilling rig, stating:

“The Outer Continental Shelf Lands Act does not oust admiralty law having a basis of applicability independent from the location of the platforms at sea; indeed, it specifically provides that the general law of the upland state is made the applicable federal law only to the extent that it is ‘not inconsistent with * * * other Federal laws.’ * * * The case at bar is distinguishable [from Rodrigue], in that the Jones Act and the general maritime law do apply of their own force here; they would still apply, in fact, even if we assumed that Kimble received his injuries in the heart of the Louisiana mainland, so long as he was acting at the time as a seaman in the service of his ship.” 416 F.2d at 850.

Directly in point is Armstrong v. Chambers & Kennedy, 340 F.Supp. 1220 (S.D.Tex.1972). In that case an explosion and fire on an offshore drilling platform resulted in injury to persons and property on a vessel tied alongside the platform. The court held that maritime law rather than Texas law applied to these claims. Id. at 1233.

These decisions indicate that the Outer Continental Shelf Lands Act, as interpreted in Rodrigue, does not preclude the application of maritime law to claims with a maritime nexus wholly apart from the location of the platform on the navigable waters.

III.

The locus of a tort is the place where injury takes effect. T. Smith & Son, Inc. v. Taylor, 276 U.S. 179, 48 S.Ct. 228, 72 L.Ed. 520 (1928); Bible v. Chevron Oil Co., 308 F.Supp. 312 (E.D. La.1969), aff’d, 460 F.2d 1218 (5th Cir. 1972).

Here, the injuries were the physical damage to plaintiffs’ boats incurred while they were on the water and the interference with the plaintiffs’ alleged navigational rights in the Santa Barbara Channel. Necessarily these injuries “took effect” in the navigable waters of the United States. See Sound Marine & Machine Corp. v. Westchester County, 100 F.2d 360 (2d Cir. 1938); State Dep’t of Fish and Game v. S.S. Bournemouth, 307 F.Supp. 922 (C.D. Cal.1969); see also Marine Cooks & Stewards v. Panama Steamship Co., 265 F.2d 780 (9th Cir. 1959), rev’d on other grounds, 362 U.S. 365, 80 S.Ct. 779, 4 L.Ed.2d 797 (1960); Maier v. Publicker Commercial Alcohol Co., 62 F.Supp. 161 (E.D.Pa.1945), aff’d, 154 F.2d 1020 (3d Cir. 1946).

Initially, defendants took the position that a finding that the injury took effect on navigable water was dis-positive of the choice of law issue in their favor. Had not the Executive Jet decision come down since oral argument we would have agreed. See Hess v. United States, 259 F.2d 285 (9th Cir. 1958), vacated on other grounds, 361 U.S. 314, 80 S.Ct. 341, 4 L.Ed.2d 305 (1960); United States v. Matson Navigation Co., 201 F.2d 610 (9th Cir. 1953). But in light of Executive Jet a resolution of the choice of law issue based on locality alone is not sufficient. We must also decide whether the wrong bears “a significant relationship to traditional maritime activity.” 409 U.S. at 268, 93 S.Ct. at 504.

The plaintiff in Executive Jet owned a jet aircraft used for charter hire. In July 1968 it took off from Burke Lakefront Airport in Cleveland on a flight to Portland, Maine. Shortly after takeoff and while over land the aircraft ingested a flock of seagulls into its engines and suffered almost a total loss of power. It descended toward the airport, struck a fence and truck and then settled into the navigable waters of Lake Erie, becoming a total loss. The major part of the damage was done by water.

Plaintiff sued the air traffic controller, the airport operator and its manager for negligence in United States District Court for Northern Ohio on the basis of the admiralty jurisdiction. 28 U.S.C. § 1333(1); see Weinstein v. Eastern Airlines, Inc., 316 F.2d 758 (3d Cir. 1963). The district court dismissed the complaint, holding that “the tort in this case did not occur upon navigable waters and the action is not cognizable in admiralty.” The Court of Appeals for the Sixth Circuit affirmed in a 2 — 1 decision. 448 F.2d 151 (1971).

While the Supreme Court affirmed the judgment of dismissal it did so on altogether different grounds. The Court declined to decide whether the tort “occurred” upon the navigable waters. Rather, as we have noted, it held that more was required than mere maritime locality in order to involve admiralty jurisdiction. It then found that, upon the facts of this case, the additional requirement that the wrong bear a significant relationship to traditional maritime activity had not been met.

Executive Jet does not compel a reversal in the present case. Neither the tort there alleged (negligent failure to clear the runway) nor the resulting injury (property damage to the aircraft) bore any relationship to traditional maritime activity. In our case plaintiffs sought damages for physical injury to maritime vessels and for interference with their right of navigation. Such claims do bear a significant relationship to traditional maritime activity. It is precisely plaintiffs’ alleged rights to engage in “traditional maritime activity” that they are seeking to protect.

In their supplemental brief plaintiffs contend vigorously that defendants were not engaging in “traditional maritime activity.” However, the nature of defendants’ activities is not dispositive. See Philadelphia, Wilmington & Baltimore Railroad Company v. Philadelphia & Havre De Grace Steam Towboat Co., 23 How. 209, 64 U.S. 209, 16 L.Ed. 433 (1859); Firemen’s Fund Ins. Co. v. Standard Oil of California, 339 F.2d 148 (1964); Sound Marine & Machine Corp. v. Westchester County, supra; The America, 34 F.Supp. 855 (E.D.N.Y.1940). We hold that plaintiffs’ claims for property damage to their vessels and for interference with their right of navigation sound in maritime tort. Accord: American Waterways Operators, Inc. v. Askew, 335 F.Supp. 1241 (M.D.Fla.1971), rev’d on other grounds, 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973); Salaky v. Atlas Barge No. 3, 208 F.2d 174 (2d Cir. 1953).

IV.

Under federal maritime law loss of use of a private pleasure boat is not a compensable item of damages. The Conqueror, 166 U.S. 110, 17 S.Ct. 510, 41 L.Ed. 937 (1897). A fortiori no cause of action sounding in maritime tort can be maintained when the alleged injury is interference with plaintiffs’ use of their boats in the Santa Barbara Channel.

V.

The special masters assumed that their holding that plaintiffs’ injury was caused by a “maritime tort” committed by defendant precluded the application of California law to plaintiffs’ claim. At the time it was made this assumption was based on good authority, and was consistent with the holding of the court in American Waterways Operators, Inc. v. Askew, 335 F.Supp. 1241 (M.D.Fla. 1971). However, since that time, Askew was reversed by the Supreme Court, Askew v. American Waterways Operators, Inc., 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973).

In Askew the three-judge court held that the Florida Oil Spill Prevention and Pollution Control Act was unconstitutional in its entirety. That court reasoned that the Act, which imposed upon the owners and operators of vessels and terminal facilities unlimited liability without fault for clean-up costs incurred by the state and for other damages suffered by the state or private persons as a result of an oil spill originating from the vessel or terminal facility, conflicted with the Water Quality Improvement Act, 33 U.S.C. § 1161 et seq. and also constituted an unconstitutional attempt by the state of Florida to prescribe rules of decision for matters falling within the admiralty jurisdiction of the United States.

The three-judge court also found that those parts of the Act which did not conflict with the Water Quality Improvement Act, i. e., those dealing in compensation for property damage, were nevertheless unconstitutional because they “would effect — in the words of Jensen — the ‘destruction of the very uniformity in respect to maritime matters which the Constitution was designed to establish.’ ” 335 F.Supp. at 1248. The court reached this conclusion because the Florida Act in imposing liability without fault went far beyond the liability imposed by the general maritime law which was predicated upon negligence or unseaworthiness.

The Supreme Court reversed the judgment of the three-judge court and indicated, first, that it found no conflict between the Water Quality Improvement Act and the Florida Pollution Control Act. Second, the Court noted that actions to recover for property damage on shore caused by pollution emanating from vessels on the water were not within the traditional admiralty jurisdiction, The Plymouth, 3 Wall. 20, 70 U.S. 20, 18 L.Ed. 125 (1865), but were within the admiralty jurisdiction only by virtue of the Admiralty Extension Act, 46 U.S.C. § 740. The Court concluded that, at least for injuries actionable in admiralty only by reason of the Admiralty Extension Act, such jurisdiction was not intended to be exclusive and Florida could enact rules of decision of its own to apply to these injuries. On this basis the Court reversed the judgment of the district court holding the Florida Act unconstitutional in its entirety.

Askew had an unusual procedural posture. The ship and terminal operators had sued various state officials for declaratory judgment that the Florida Act was unconstitutional and an injunction against its enforcement. Although there had been no oil spill when suit was brought the operators claimed a sufficient adverse interest on the ground that they were immediately subject to various licensing, regulatory and financial responsibility provisions of the act. The three-judge court agreed and, after holding the various remedies afforded public and private interests by the Florida Act were unconstitutional, found further that these licensing and financial responsibility provisions were so interwoven with and dependent upon the substantive provisions that they, too, were invalid. 335 F.Supp. at 1250.

As noted, the Supreme Court held that Florida could provide remedies for persons suffering injury on shore from pollution emanating from ships at sea, so-called “ship-to-shore” pollution. It followed that the licensing and financial responsibility provisions of the Florida-enactment, those parts of the Act really at issue in Askew, were likewise valid ancillary measures. But the Court in Askew was not presented with the issue and did not decide whether other aspects of the Florida law were constitutional. Specifically, the court did not decide whether “ship-to-sea” or “shore-to-sea” pollution were also proper subjects of state concern.

VI.

In the present case we need not decide whether Askew is authority for applying California law to the present case of shore-to-ship pollution. Even assuming that the California statutes providing a remedy for nuisance were intended to apply to injuries occurring within the navigable waters, and that, under Askew, such application would be constitutional, it would not help the plaintiffs in the present case. There is no right under California law to recover for damage to the navigational rights enjoyed by these plaintiffs.

Plaintiffs argue strenuously that “loss of use” of a private pleasure vehicle or vessel is a compensable item of recovery under California law, citing Valencia v. Shell, 23 Cal.2d 840, 147 P.2d 558 (1944); Johnson v. Central Aviation, 103 Cal.App.2d 102, 229 P.2d 114 (1951); Story v. Gateway Chevrolet, 237 Cal.App.2d 705, 47 Cal.Rptr. 267 (1965), and Malinson v. Black, 83 Cal.App.2d 375, 188 P.2d 788 (1948).

No doubt this is true. But in each of the cases cited the chattel itself was unavailable for use because of physical damage thereto or wrongful detention thereof.

In the present case plaintiffs’ claim is not for “loss of use” of their boats; the boats themselves were perfectly usable. Rather, the claim is for loss of “navigation rights” in the Santa Barbara Channel. Thus their claim is, under California law, a claim for damages arising out of a public nuisance. People v. Mack, 19 Cal.App.3d 1040, 97 Cal.Rptr. 448 (1971).

California nuisance law is quite clear. Cal.Civ.Code § 3479 provides:

“Anything which . . . unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”

The following sections provide:

“A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” Cal.Civ.Code § 3480.
“Private nuisance. Every nuisance not included in the definition of the last section is private.” Cal.Civ.Code § 3481.

In the recent case of Venuto v. Owens-Corning Fiberglass Corporation, 22 Cal.App.3d 116, 99 Cal.Rptr. 350, 355 (1971) the law was summarized ás follows:

“[A] private nuisance is a civil wrong based on disturbance of rights in land while a public nuisance is not dependent upon a disturbance of rights in land but upon an interference with the rights of the community at large.”

Interference with the public’s right of navigation in the navigable waters of California is a public nuisance. People v. Mack, supra. A civil action for damages arising out of a public nuisance cannot be brought by a private litigant unless he has been specially injured. Cal.Civ.Code § 3493. See Yolo County v. City of Sacramento, 36 Cal. 193 (1868). In Venuto, supra at 355, the court said:

“Where the nuisance alleged is not also a private nuisance as to a private individual he does not have a cause of action on account of a public nuisance unless he alleges facts showing special injury to himself in person or property of a character different in kind from that suffered by the general public. Under this rule the requirement is that the plaintiff’s damage be different in kind, rather than in degree, from that shared by the general public.” (citations omitted)

The plaintiffs’ physical damages are recoverable in negligence and probably also constitute such special injury as to present them with a cause of action for these damages in nuisance. But the damage suffered on account of their loss of navigation rights in the Santa Barbara Channel and harbor is no different in kind from that suffered by the public generally. As Dean Prosser summarized the law:

“One group of cases has arisen where an established business made commercial use of the public right with which the defendant interfered. Thus when a river is blocked, a steamboat line operating boats upon it, or a company engaged in rafting logs or collecting tolls for passage, has been permitted almost without question to maintain the action. There are several cases in which commercial fisheries making a localized use of public waters have been allowed to recover where the ordinary citizen deprived of his occasional Sunday piscatorial pleasure could not do so.” Prosser, “Private Action for Public Nuisance,” 52 Va.L.Rev. 997, 1018-1014 (1966). (footnotes omitted)

These plaintiffs were deprived of no more than their “occasional Sunday piscatorial pleasure.” For this deprivation there is no recovery either under California law or general maritime law.

The judgment is affirmed.

      . The special masters were judges of the Superior Court, Santa Barbara County.

      . See, e. g., Weinstein v. Eastern Airlines, Inc., 316 F.2d 758 (3d Cir. 1963) wherein the court stated:
      .“The critical factor in determining whether a tort claim comes within the broad statutory grant of admiralty jurisdiction is the situs of the tort; i. e., the place where it happened. If the tort occurred on navigable waters, the claim is one that lies within the jurisdiction of the courts of admiralty; nothing more is required.” Id. at 761 (footnote omitted).

        Weinstein was expressly overruled in Executive Jet. See 409 U.S. at 266, 93 S.Ct. 493.

      . The stipulation further provided:
      “3. In order to provide a basis for the disposition of the above referenced claims it is agreed by the undersigned defendants that they will pay to the above referenced persons and/or plaintiffs who are, or who by reason of subsequent joinder herein become, parties hereto, all legally compensable damages arising from a legally cognizable injury caused by the aforementioned occurrence as such damages are determined pursuant to the following provisions ; provided, however, that the payment assumed hereby will not exceed such amount and such claim as said defendants or their contractors would be responsible for in a case of negligence.”
      It then went on to set out the procedures that would be followed.
      “All claims not settled will be tried by a special master, sitting without jury. The right to a jury trial is expressly waived. The master shall decide the questions whether any damages asserted would be recoverable in a case of negligence and the amount of said damages.
      $ $ $ $ $
      “5. Each decision of a special master or the special masters shall be subject to approval by the Court and upon being so approved shall be entered as a separate, independent and final judgment of the Court. The right to appeal is waived in any case where the judgment is less than $10,000.00, unless the Court in its discretion orders otherwise.”

      . The plaintiffs were awarded compensation for the physical damage to their vessels.

      . 46 U.S.C. § 761 et seq.

      . La.R.C.C. Art. 2315.

      . Piers extending from the mainland into navigable waters are treated as part of the land. The Plymouth, 3 Wall. 20, 70 U.S. 20, 18 L.Ed. 125 (1865); Hastings v. Mann, 340 F.2d 910 (4th Cir. 1965).

      . 46 U.S.C. § 740.

      . La. Code of Civil Procedure Art. 42.

      . See The Plymouth, 3 Wall. 20, 70 U.S. 20, 18 L.Ed. 125 (1865).

      . 46 U.S.C. § 688.

      , Plaintiffs contend that The Conqueror has been limited by Brooklyn Eastern District Terminal v. United States, 287 U.S. 170, 53 S.Ct. 103, 77 L.Ed. 240 (1932). While one court has agreed with this contention (see Finkel v. Challenger Marine Corp., 316 F.Supp. 549 (S.D.Fla.1970)), we do not. The cited language in Brooklyn (287 U.S. at 175, 53 S.Ct. 103) was dictum. In our view it takes a new and contrary holding of the Supreme Court before we are relieved of our obligation to follow previous holdings of that Court.

      . See Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917).

      . L.Fla.1970 c. 70-244.

      . While the plain language of Cal.Civ.Code § 3479 seems to compel the conclusion that California did intend to apply its nuisance law to interference with navigation rights on navigable streams and other waters there is some case law authority for narrowly construing such statutes so as to not conflict with the admiralty jurisdiction. See Blevens v. Sfetku, 259 Cal.App.2d 527, 66 Cal.Rptr. 486 (1968).

      . “It is not, however, necessary that the entire community be affected, so long as the nuisance will interfere with those who come in contact with it in the exercise of the public right. The obvious illustration, of course, is the obstruction of a public highway which inconveniences only those who are travelling upon it.” Prosser, “Private Action for Public Nuisance,” 52 Va.L.Rev. 997, 1001-1002 (1966) (footnote omitted).


text:
    UNITED STATES of America v. Anthony SALERNO et al. Appeal of Howard SILVERMAN, in No. 73-1195. Appeal of William SILVERMAN, in No. 73-1196. Appeal of Angelo ROSSI, Jr., in No. 73-1197.
    Nos. 73-1195 to 73-1197.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 5,1973.
    Decided Sept. 25, 1973.

      Daniel H. Greenberg, New York City, for appellants in Nos. 73-1195 and 73-1196.
    Morris M. Goldings, and Robert A. Saggese, Mahoney, Atwood & Goldings, Boston, Mass., for appellant in No. 73-1197.
    Herbert J. Stern, U. S. Atty., and Richard S. Zackin, Asst. U. S. Atty., Newark, N. J., for appellee.
    Before HASTIE, VAN DUSEN and GIBBONS, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

These appeals challenge judgment and commitment orders of the district court entered after jury verdicts had been returned finding the defendants-appellants Rossi, H. Silverman and W. Silverman guilty on Count 1 of the indictment, charging conspiracy to transport stolen securities in interstate commerce in violation of 18 U.S.C. § 371, and defendant-appellant Rossi guilty on various substantive counts (Counts 3, 6, 7, 8 and 9), charging the transportation of stolen securities in interstate commerce in violation of 18 U.S.C. §§ 2 and 2314. After careful consideration of the contentions of defendants-appellants, we have con-eluded that the record requires the affirmance of the judgments and commitments of the district court.

Appellants contend, inter alia, that the evidence at trial was insufficient to prove that they were members of the overall, single conspiracy charged in the indictment in that the evidence established at most that they participated in separate, multiple conspiracies. In analyzing this contention, this court must view the evidence “in the light most favorable to the prosecution in order to sustain the convictions.” United States v. DeCavalcante, 440 F.2d 1264, 1273 (3d Cir. 1971). The evidence at trial established that co-defendants Zelmanowitz, Green, Beckley and Salerno (all severed from the trial for various reasons) were at the core of a conspiracy formed to procure stolen securities of various types for subsequent sale to unsuspecting brokerage houses. Each of these individuals performed a specialized function in furtherance of the conspiracy. Green and Beckley were continuously pursuing stolen securities which, when found, were purchased and turned over to Zelmanowitz for resale after Salerno had checked out the reliability of the seller. The evidence further e$tablished, largely through the testimony of eoeonspirator Zelmanowitz, the Government’s main witness, that defendant Rossi supplied the core group with stolen securities on two occasions and that appellants Silverman supplied the core group with counterfeit securities on one occasion.

Appellants Rossi and Silverman argue that they were not members of the overall conspiracy because they merely sold to a pre-existing conspiracy without knowledge of the members or scope of this conspiracy. The appellants rely upon the case of United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940), in which the Supreme Court held that mere selling of materials to a conspiracy, even where the seller has knowledge that the materials sold would be used illegally, does not render the seller a participant in the conspiracy absent knowledge of the conspiracy itself. Subsequently, however, in Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943), the Supreme Court rejected the argument that one who sells articles used by a conspiracy cannot be found guilty of that conspiracy. The Court indicated that one who does sell to a conspirator with knowledge of the conspiracy can become a party to the conspiracy by aiding and abetting it. Id. at 709, 63 S.Ct. 1265. The district court properly charged on this permissible basis of guilt.

In the present case, there is ample evidence in the record to establish that appellant Rossi knowingly participated in the overall conspiracy. Rossi met with Zelmanowitz and Beckley on numerous occasions to discuss the sale of stolen securities, made two such sales to Zelmanowitz and Beckley, was expressly told that the securities would be resold by Zelmanowitz, and supplied Zelmanowitz with false identification in order to facilitate the resale. Similarly, there is ample evidence in the record indicating that appellants Silverman aided and abetted the conspiracy by selling to conspirators with full knowledge that they were dealing with a conspiracy. First, in negotiating and consummating the sale, they dealt directly with two members of the conspiracy, Zelmanowitz and Green. Second, they were clearly informed that Zelmanowitz and Green would deal only in securities which were not on any lists of stolen securities and that Zelmanowitz intended resale through a brokerage firm. Moreover, although they were paid immediately upon delivery of the securities to Zelmanowitz and Green, there was testimony indicating that their receipts would be a certain percentage of the proceeds realized upon resale by the core conspirators, thus linking the success of their venture to the success of the conspiracy’s ultimate resale. The above was sufficient evidence upon which the jury could find that the Silvermans were members of the overall conspiracy.

Appellants also contend that the trial judge erred in refusing to instruct the jury that they should acquit appellants if they found separate conspiracies, rather than a single, overall conspiracy. An examination of the court’s charge satisfies us that this claim is without merit. The court stressed in its charge that the Government alleged a single conspiracy and that the Government must show that each defendant was a “knowing part” of this conspiracy. Moreover, the trial judge carefully instructed the jury that in determining whether a particular defendant was a member of the alleged conspiracy, they should consider only his acts and statements for he could not be bound by the acts or declarations of other participants until, it was established that a conspiracy existed and that he was a participant in it. The risk of guilt transference was thus properly minimized. See United States v. Morado, 454 F.2d 167, 172 (5th Cir.), cert. denied, 406 U.S. 917, 92 S.Ct. 1767, 32 L.Ed.2d 116 (1972); United States v. Calabro, 449 F.2d 885, 894 (2d Cir. 1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 728, 30 L.Ed.2d 735, cert. denied, 405 U.S. 928, 92 S.Ct. 978, 30 L.Ed.2d 801 (1972); United States v. Aiken, 373 F.2d 294, 299 (2d Cir.), cert. denied, 389 U.S. 833, 88 S.Ct. 32, 19 L.Ed.2d 93 (1967).

Since we have found appellants’ other contentions to be without merit, the district court judgment and commitment orders will be affirmed.

      . The court has considered and rejected the contentions of defendant Rossi (appellant in No. 73-1197) that:
      (a) he was prejudiced by the joinder of offenses and defendants for trial together, and the trial judge erred in denying the numerous motions for severance of the defendants made prior to trial ;
      (b) the trial judge erred in denying defendants’ application for mistrial subsequent to the severance of Anthony Salerno from the trial;
      (c) subsequent to the severance of Anthony Salerno, there was a change of the elements of the crime charged, which constituted an improper amendment to the indictment ;
      id) the trial judge erred in denying defendant’s motion for an order setting aside the verdict of the jury as to Count 1 and for entry of a judgment of acquittal, as the evidence established, at best, that the defendant merely sold to a conspiracy, and was insufficient to warrant his conviction on the conspiracy count;

      (e) the trial judge erred in denying defendant’s motion for an order setting aside the verdict and for entry of a judgment of acquittal as there was a variance between the indictment, which charged a single, overall conspiracy, and the proof, which, at best, established several separate and distinct conspiracies ; and

        (f) the trial judge should have instructed the jury on multiple conspiracies.
      The court has also considered and rejected the contentions of defendants Howard and William Silverman (appellants in Nos. 73-1195 and 73-1196) that:
      (a) the totality of the circumstances of the case denied appellants substantial due process of law and a fair and impartial speedy trial, as mandated by the Fifth and Sixth Amendments to the Constitution;
      (b) it was prejudicial error for the trial judge to fail to instruct the jury, as requested by appellants, that the scope of the conspiracy count, as establishing one conspiracy or several, was for their determination;
      (c) the proof established as a matter of law that the appellants Silverman were not members of the conspiracy alleged in the indictment;
      (d) there was a material variance between the allegations of the conspiracy count and the proof submitted in support thereof, insofar as appellants Silverman are concerned ; and
      (e) the failure to afford appellants a speedy trial violated their constitutional rights guaranteed by the Sixth Amendment to the Constitution.
      Each appellant also expressly adopted the arguments of his co-appellants. The court has considered and rejected each of the above arguments insofar as it relates to each appellant.

      . While the appeal in the present case was pending, the appellants filed a motion for remand to the district court so that the district court might pass upon a motion for a new trial based upon newly discovered evidence. This motion will be denied, since it is well-settled procedure that remand is proper only after the district court has ruled on such motion for a new trial. See United States v. Scott, 460 F.2d 45, 48 at n. 3 (3d Cir. 1972); United States v. Conway, 415 F.2d 158, 166 (3d Cir. 1969), cert. denied, 397 U.S. 994, 90 S.Ct. 1131, 25 L.Ed.2d 401 (1970); United States v. Frame, 454 F.2d 1136 (9th Cir.), cert. denied, 406 U.S. 925, 92 S.Ct. 1794, 32 L.Ed.2d 126 (1972).


author: TALBOT SMITH, Senior District Judge.

text:
    Cecilia, GABALDON, Plaintiff-Appellant, v. WESTLAND DEVELOPMENT COMPANY, INC., NSL, a New Mexico corporation, Defendant-Appellee.
    No. 73-1343.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Aug. 15, 1973.
    Decided Oct. 11, 1973.

      Leof T. Strand, Albuquerque, N. M. (Joseph L. Smith, Lorenzo A. Chavez and Melvin L. Robins, Albuquerque, N. M., on the brief), for plaintiff-appellant.
    Ronald J. Segel, Albuquerque, N. M., (Sutin, Thayer & Browne, Albuquerque, N. M., on the brief), for defendant-appellee.
    Before LEWIS, Chief Judge, BARRETT, Circuit Judge, and SMITH, Senior District Judge.

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

   TALBOT SMITH, Senior District Judge.

The case before us involves a bill to quiet title brought by appellant Cecilia Gabaldon. Defendant Westland Development Co., Inc., NSL, a New Mexico corporation (Westland), successor in interest to the Town of Atrisco, answered and counterclaimed, praying cancellation of appellant’s deed. Cross motions for summary judgment were filed and argued, the court finding appellant’s motion without merit, appellee’s motion well taken, and holding appellant’s deed to be null and void.

The land in question was originally a part of the Atrisco Land Grant. This property has been involved in extensive litigation. Armijo et al. v. Town of Atrisco, 56 N.M. 2, 239 P.2d 535 (1952); Armijo et al. v. Town of Atrisco, 62 N.M. 440, 312 P.2d 91 (1957). The particular phase of the matter now before us involves a plan for distribution of 10,000 acres of the land of the grant. The approval of the plan by the District Court for the County of Bernalillo in March of 1953 was appealed and in the Supreme Court reversed, Armijo v. Town of Atrisco, supra.

The Supreme Court, after reviewing previous litigation as well as the case before it held that the means for distribution of the lands approved by the District Court:

“not only amount to a violation of the statute law of this state prohibiting lotteries . . . but as well amount to a dissipation of the assets of the corporation, contrary to law . In fine the plan of disposition proposed discloses a pronounced absence of primary and elemental concepts of due process and equal protection of the laws, in violation of constitutional guarantees existing in favor of owners of the beneficial interest in the common lands of the Grant.” 312 P. 2d at 101.

The Court thereupon held that “the judgment [below] will be reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.”

Upon remand the state court vacated all previous orders respecting the distribution of the lands involved, held that the described “seventy deeds” (among them the appellant’s) were “void and of no effect” and stated that “if necessary” the Board of Trustees of the Town of Atrisco was to institute appropriate proceedings to cancel the deeds. We do not overlook the fact that no appeal was taken from the entry of this judgment, dated August 19, 1957, but in view of the land titles involved will rule on the issues presented.

Some fifteen years later, on July 18, 1972, Cecilia Gabaldon whose deed to the land in question had been held void in the order of August 19, 1957, filed in the federal court a bill to quiet title, complaining that she held a deed to the property involved and that appellee herein made a claim thereto. It was the appellee’s answer that her deed was void, citing the state court proceedings outlined above, and counterclaiming for cancellation of her deed.

Appellant asserts that the statute of limitations has run on West-land’s counterclaim for the cancellation of her deed, citing Pugh v. Heating & Plumbing Finance Corporation, 49 N.M. 234, 161 P.2d 714 (1945), a case involving the enforcement of a judgment lien. But here Westland’s cause of action is not an action on a judgment, being, rather, an action to cancel a void deed. This deed was void from the date of its execution, not merely from the date of the Armijo judgment, and, as such, can furnish no basis for a favorable decree in a quiet title suit, wherein appellant must prevail, if at all, on the strength of her own title. Komadina v. Edmonson, 81 N.M. 467, 468 P.2d 632 (1970).

We are not ruling upon which of the above statutes is applicable, if, indeed, either or any other applies. Here the appellee sets up the invalidity of appellant’s deed as a defense to her bill to quiet title. Under N.M.S.A. § 23-1-15 (1953), captioned “Set-offs or counterclaims not barred . . . ”, a cause of action that, if asserted offensively, would be barred by limitations, may nevertheless be raised as a defense, if “the same was not barred at the time the cause of action sued for accrued or originated.” Appellant’s cause of action accrued either in 1955 or 1956 at neither of which times would Westland’s action to cancel the deed have been barred.

Appellee is thus not barred by limitations from obtaining the relief sought and granted.

But the principal thrust of appellant’s argument, both in the court below and here is that the State district court for Bernalillo County, in holding appellant’s' deed (and others) void, is that the court went beyond the mandate' issued it. On this point Judge Bratton, below, held as follows:

“The District Court’s assessment of the import of the mandate to it from the Supreme Court was correct. The illegality of the distribution plan, as violative of statutes prohibiting lotteries, as well as the unlawful dissipation of the assets of a corporation, made it beyond the power of the District Court to approve and the Supreme Court held that Order of Approval to be void. Consequently all actions pursuant thereto, including the issuance of deeds thereunder, were void and of no effect.
“Since plaintiff’s claims to the land arise only under her deed issued pursuant to the plan, and it is void, it necessarily follows that she may not, as a matter of law, prevail on the merits in this action. Defendant is entitled to have the cloud upon its title removed by cancellation of the plaintiff’s void deed.”

There is little one can add to the cogency of the ruling so made. The mandate was for further proceedings not inconsistent with the views of the Supreme Court. Such “further proceedings” were, of course, to implement at the local level the ruling of the higher court and were manifestly consistent therewith. Moreover, we accept the interpretation of the New Mexico law by the Federal District Court in the State that the deed was absolutely void since we are not convinced that it is clearly erroneous. Teague v. Grand River Dam Authority, 425 F.2d 130 (10th Cir. 1970); Parsons v. Amerada Hess Corp., 422 F.2d 610 (10th Cir. 1970).

We find no error. Under the view we have taken of the case we find no need to explore the legal effect of the series of state court proceedings taken subsequent to the Armijo ruling.

Affirmed.

      . Armijo v. Town of Atrisco, supra, at 102. The mandate itself (It. 81) stated “remanded to you for further proceedings not inconsistent with the views expressed in said opinion and the judgment of this Court.”

      . Citing both N.M.S.A. § 23-1-2 (1953), seven years on a judgment, and § 23-1-4, unspecified actions, four years.

      . Authority to the effect that statutes of limitation do not normally apply in the quiet title situation is found in Barnes v. Spangler, 98 Colo. 407, 56 P.2d 31 (1936) and Oates v. Nelson, 269 Cal.App.2d 18, 74 Cal. Rptr. 475 (1969); see, also, 53 C.J.S. Limitations of Actions § 36.

      . Upon delivery of the deed to her, of. LaNeve v. Hinkson, 271 S.W.2d 467 (Tex.Ct.Civ.App.1954).

      . Upon recording, cf. Nicholas v. Giles, 102 Ariz. 130, 426 P.2d 398 (1967).