author: HAYNSWORTH, Chief Judge:

text:
    WILLIAM F. WILKE, INC., a Maryland corporation, Appellant, v. DEPARTMENT OF the ARMY OF the UNITED STATES of America et al., Appellees. WILLIAM F. WILKE, INC., Plaintiff-Appellee, v. DEPARTMENT OF the ARMY OF the UNITED STATES of America, and Robert F. Froehlke, Secretary of the Army, Defendants-Appellants, A & M Gregos, Inc., Intervenor-Appellant. WILLIAM F. WILKE, INC., a Maryland corporation, Appellee, v. DEPARTMENT OF the ARMY OF the UNITED STATES of America, and Robert F. Froehlke, Secretary of the Army, Appellants.
    Nos. 73-1483, 73-1484 and 73-1497.
    United States Court of Appeals, Fourth Circuit.
    Argued June 5, 1973.
    Decided Sept. 26, 1973.

      Allan J. Malester, Baltimore, Md. (Roy Niedermayer and Gordon, Feinblatt, Rothman, Hoffberger & Hollander, Baltimore, Md., on brief) for appellant and appellee William F. Wilke, Inc.
    Robert E. Kopp, Atty., U.S.. Dept. of Justice (Harlington Wood, Jr., Asst. U. S. Atty. Gen., George Beall, U.S. Atty., Barbara L. Herwig, Atty., U.S. Dept, of Justice, on brief), for appellee and appellant Dept. of the Army of the United States.
    C. Stanley Dees, Washington, D.C. (Sellers, Conner & Cuneo, Washington, D.C., Wilbur D. Preston, Jr., and White-ford, Taylor, Preston, Trimble & Johnson, Baltimore, Md., on brief), for appellee and intervenor-appellant A & M Gregos, Inc.
    Before HAYNSWORTH, Chief Judge, WINTER, Circuit Judge, and KNAPP, District Judge.
   HAYNSWORTH, Chief Judge:

A disappointed bidder on a Government contract, we conclude, has standing to contest an award to another whose lower bid was tardy and wrongfully considered, but the District Court, under the circumstances, properly denied injunctive relief and limited the plaintiff to recovery of its bid preparation costs.

On February 20, 1973, the United States Army Corps of Engineers advertised for bids for barracks rehabilitation at Fort George C. Meade, Maryland. The advertisement specified that bids would be received until 3:00 P.M., March 13, 1973, at the office of the District Engineer in Baltimore, Maryland. At that time the bids would be publicly opened.

The time for opening arrived, and the box containing the submitted bids was brought into the room in which the opening was to take place. The Army’s bid officer opened the box and began sorting out the bids. Minutes later at 3:04 P.M., a representative of A & M Gregos, Inc. came forward and placed Gregos’ bid with the others. The bid was accepted, and the bid officer proceeded to make a bid opening announcement with the statement, “It is now three o’clock, time to open bids on Invitation No. DACA 31-73-B-0066. Are all bids in?” The first bid was then opened at 3:05 P.M. At the conclusion of the ceremony, Gregos proved to be the low bidder at $2,877,000. The next low bidder was the plaintiff, William F. Wilke, Inc., at $2,941,349.

Immediately after the opening ceremony, Wilke’s representative orally protested the acceptance of Gregos’ bid. This was followed by a telegram and a letter from Wilke, both asserting the tardiness of Gregos’ bid. The Army considered Wilke’s objections but finally decided to accept Gregos’ bid nonetheless. A notice of award was issued to Gregos on March 28, 1973.

After being notified of this action, Wilke sought judicial relief in the United States District Court for the District of Maryland. That court granted a temporary restraining order on April 4, 1973, to stop the Army from taking further steps to effect performance of the contract.

After a hearing on Wilke’s request for a preliminary injunction and submission of motions and memoranda by the parties, the District Court filed an opinion on April 16, 1973. To the extent that Wilke sought declaratory judgment, the court found Gregos’ bid “untimely, non-responsive, contrary to the terms of the invitation, void and of no effect.” But the court declined to grant injunctive relief that would effectively put Wilke in the position of successful bidder. Pursuant to the Army’s and Gregos’ requests, Gregos was allowed to answer as a party defendant.

All parties unsuccessfully moved to have the judgment of the District Court altered.

For the reasons given therein, we affirm the District Court’s opinion. 357 F.Supp. 988 (D.Md. 1973). We agree that Gregos’ bid was not timely filed under the terms of the, invitation or the applicable statute and regulations. 10 U.S.C. § 2305(c); 32 C.F.R. §§ 1-101 et seq. Such a finding is consonant with the interpretations given by the Comptroller General’s office.

Similarly, we agree with the District Court's denial of injunctive relief. Whether to grant such extraordinary relief has always been discretionary with the trial court. This is particularly true in a situation such as this where granting of any relief is unusual. M. Steinthal & Co. v. Seamans, 147 U.S.App.D.C. 221, 455 F.2d 1289 (1971). Further justification for limiting relief rests in the fact that Gregos gained no actual competitive advantage in its late bid submission. While there was a violation of the strict terms of the invitation, it was a technical violation only. No one suggests that Gregos had any more relevant information at 3:04 P.M. than at 3:00 P.M. Finally, Wilke is not denied a remedy altogether. It may still seek recovery of bid preparation costs in the Court of Claims. Keco Industries, Inc. v. United States, 428 F.2d 1233, 192 Ct.Cl. 773 (1970).

Since the District Court granted declaratory relief in favor of Wilke, it necessarily found that Wilke was entitled to judicial relief. We concur in that conclusion, but find that further discussion of that issue is necessary.

The Army relies on Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940), as authority for the premise that an unsuccessful bidder, such as Wilke, cannot found a cause of action against a Government agency on alleged violations of legislation regulating that agency’s activities. In Lukens Steel, the Supreme Court considered such statutes as guides for the internal operation of agencies, and not as any “bestowal of litigable rights upon those desirous of selling to the Government * * * .” Id. at 127, 60 S.Ct. at 877. Circumstances and statutes have changed, however. Members of the public peculiarly affected by the Government’s misapplication of such statutes now do have a litigable interest, as other courts have recognized.

In Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970), the court found that the rationale of Lukens Steel had been substantially eroded by subsequent legislation, particularly Section ten of the Administrative Procedure Act, 5 U.S.C. § 702. The unsuccessful bidder was found to have standing to sue. A similar conclusion was reached by the Third Circuit in Merriam v. Kunzig, 476 F.2d 1283 (3d Cir. 1973). Although these cases were directly concerned with the standing of an unsuccessful bidder to sue a Government agency, the same collateral issue was considered in each — whether legislation regulating governmental activity inures to the benefit of those tangentially affected.

While those seeking Government contracts have no right to the award of a contract, they do have a right to reasonable treatment of their bids. Heyer Products Co. v. United States, 140 F.Supp. 409, 135 Ct.Cl. 63 (1956). See also Copper Plumbing & Heating Co. v. Campbell, 110 U.S.App.D.C. 177, 290 F.2d 368 (1961). This right derives from the combination of the statutory scheme regulating military procurement, 10 U. S.C. §§ 2301-2314, and the review provision of the Administrative Procedure Act, 5 U.S.C. § 702.

Because of the Army’s acceptance of a tardy bid, Wilke lost any chance to be awarded the Fort Meade contract. Wilke thus suffered a financial loss as a result of the Army’s failure to follow its own regulations and bid specifications. Similarly the public was wronged by the Army’s disregard of express legislation. The general public, however, has no legal recourse. Only a party suffering an injury in fact has standing to protect this interest. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). It is because of its injury that “[pjlaintiff, and others like it, have a litigable interest in attempting to protect the public interest in the integrity of the competitive bidding process * * *. ” Lombard Corp. v. Resor, 321 F.Supp. 687, 692 (D.D.C. 1970).

Affirmed.

DENNIS R. KNAPP, District Judge, reserves the right to file a dissenting opinion.

      . An earlier round of bids for the same project was concluded January 23, 1973. The Army declared that round a nullity because of certain irregularities in the contract specifications.

      . Gregos’ representative, Nicholas Tsaronhous, was seated in the bid opening room prior to 3 :00 P.M. and was present when the bid box was brought in.

      . Prior to the issuance of the restraining order, as well as following the District Court’s opinion, Gregos actively began work and incurred substantial obligations in furtherance of the contract.

      . The Army did not challenge Wilke’s right to judicial relief until after this appeal was brought. The Army now contends Wilke has no legal interest in the Army’s bid award practices and therefore is not entitled to any relief. Because of the Army’s failure to specifically raise this issue in the District Court, Wilke contends such a defense has been waived. The merit of this argument notwithstanding, since we find Wilke is entitled to relief, it is unnecessary to consider the waiver issue.

      . See also Gary Aircraft Corp. v. United States, 342 F.Supp. 473 (W.D.Tex.1972).

      . The circumstances surrounding Lukens Steel cannot be ignored. It was decided in an era of pre-war mobilization. The decision of the Supreme Court was made in response to a lower federal court’s injunction against six Cabinet officers acting under an entire statutory program. That injunction had been in effect for over one year. The program concerned wage regulation in the steel industry.

      . “Patently the statute protects not only the Government’s interest in securing advantageous contracts, but also the interests of those responding to the Government’s invitation to do business with it.” 476 F.2d 1242 (footnote omitted).

      . The Armed Forces Procurement Act, 10 U.S.C. § 2305(c) permits the rejection of all bids in the public interest.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Robert H. TURNER, Jr., Appellant, v. Lloyd E. HAYNES, Warden of the Huttonsville Correctional Center, Appellee. Tony W. SITES, Appellant, v. Lloyd E. HAYNES, Warden of the Huttonsville Correctional Center, Appellee.
    Nos. 71-2004, 72-1169.
    United States Court of Appeals, Fourth Circuit.
    Argued July 17, 1973.
    Decided Oct. 15, 1973.

      Manton M. Grier, Columbia, S. C. [Court-appointed counsel] (Boyd, Knowlton, Tate & Finlay, Columbia, S. C., on brief), for appellants.
    Richard E. Hardison, Deputy Atty. Gen. of W. Ya. (Chauncey H. Browning, Jr., Atty. Gen. of W. Va., E. Leslie Hoffman, III, Asst. Atty. Gen. of W. Va., David P. Cleek, Sp. Asst. Atty. Gen. of W. Va., on brief), for appellee.
    Before CRAVEN, BUTZNER and RUSSELL, Circuit Judges.
   PER CURIAM:

State prisoners Robert Turner and Tony Sites appeal from an order of the United States District Court for the Northern District of West Virgina denying their petitions for writs of habeas corpus. These codefendants claim that the state trial court, in accepting their guilty pleas, failed to build an adequate record to show that the pleas were voluntarily entered — i. e., that they knew the specific crime to which they pleaded guilty and the maximum sentence they might receive. We consolidated the two cases for purposes of this appeal.

Appellants were jointly indicted for three separate offenses: burglary in the nighttime, burglary in the daytime, and grand larceny. Nighttime burglary is punishable by imprisonment for an indeterminate term of 1-15 years, while daytime burglary and grand larceny are punishable by 1-10 year sentences. In June 1970, Turner and Sites entered pleas of not guilty to all three charges. On September 29, 1970, they changed their pleas to guilty on the charge of burglary in the nighttime, and the other two charges apparently were dismissed.

After exhausting state post-conviction remedies, both men filed habeas petitions in federal district court. After considering the petitions and the respondent’s answers, the district judge convened a joint plenary hearing. In Turner’s case, the record shows that in open court Turner pleaded guilty to an indictment “involving the dwelling-house of one Luke Crossland, wherein various items were alleged to have been taken.” It was thus apparent that Turner knew to which indictment he was pleading. The evidence at the plenary hearing indicates that Turner met with his attorney approximately six times, and that his attorney had explained the indictment, possible length of sentences, and the anticipated effect of his change of plea. Turner expressly stated that his decision to plead guilty was based on the other charges being dropped, which promise was kept.

Sites testified that he had “2 or 3 or 4” conferences with his attorney, and his attorney testified that he had discussed the entire case with Sites. Sites also testified that only one indictment was read to him.

Based upon this evidence, the district judge concluded “that the plea[s] of the petitioner[s] [were] voluntary, that the state court proceeding surrounding the acceptance of the plea[s] reached a level of fundamental fairness and was proper, that the petitioner[s] failed to carry the burden of proof or establish any constitutional deprivation on any of the grounds presented . . . .” The record of the arraignment, supplemented by the record of the plenary hearing conducted in district court, presents ample evidence upon which the district judge could find that both Turner and Sites entered their guilty pleas knowingly and intelligently. Although there is some conflicting evidence, we do not think the district court’s findings are clearly erroneous.

Affirmed.


text:
    Johnnie Lee MILLER, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee.
    No. 73-2153
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 17, 1973.
    J. Michael Hayes, Tampa, Fla. (Court-appointed), for petitioner-appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Baya Harrison, III, Asst. Atty. Gen., Tampa, Fla., for respondent-appellee.
    Before WISDOM, AINSWORTH and CLARK, 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:

Miller, a Florida state prisoner, appeals from the denial of habeas corpus after an evidentiary hearing. He attacks his state court conviction and sentence for second degree murder on two grounds: (1) illegal search and seizure of a weapon introduced at his trial; (2) denial of his constitutional right to full and adequate cross-examination. We affirm.

The evidence fully supported the district court’s finding of probable cause to arrest the defendant. The district court also correctly held that the search and seizure of the weapon which occurred at about the same time as defendant’s arrest was therefore lawful, being incidental to the arrest. See United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Lovelace v. United States, 5 Cir. 1966, 357 F.2d 306, 310; Holt v. Simpson, 7 Cir. 1965, 340 F.2d 853.

Appellant’s second ground relates to unsuccessful attempts to cross-examine prosecution witnesses concerning an alleged statement of appellant made at or near the time of his arrest. Our review of the circumstances does not convince us that the matter complained of rises to constitutional proportions even if the state trial court erroneously restricted cross-examination. See Summerville v. Cook, 5 Cir. 1971, 438 F.2d 1196.

Affirmed.


author: HEANEY, Circuit Judge. MEHAFFY, Chief Judge,

text:
    Peggy STRICKLAND, a minor, by Mr. and Mrs. Virgil Justice, her parents and next friends; Virginia Crain, a minor, by Doris Crain, her mother and next friend, Appellants, v. S. L. INLOW et al., Appellees.
    No. 72-1774.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 15, 1973.
    Decided Aug. 29, 1973.
    Rehearing Denied Sept. 27, 1973.
    Rehearing En Banc Denied Oct. 18, 1973.
    Mehaffy, Chief Judge, joined by Stephenson and Webster, Circuit Judges, dissented from denial of petition for rehearing in banc and filed opinion.

      Ben Core, Fort Smith, Ark., for appellants.
    Eugene R. Warren, Little Rock, Ark., and Joe H. Hardegree, Mena, Ark., for appellees.
    Before GIBSON, HEANEY and ROSS, Circuit Judges.
   HEANEY, Circuit Judge.

We are concerned on this appeal with the propriety of District Court action denying relief to two high school students who were given lengthy suspensions from school for allegedly violating school regulations with respect to the possession and use of intoxicating liquors at a school function on school premises.

Peggy Strickland, Virginia Crain and Jo Wall were tenth grade students at Mena High School, Mena, Arkansas, when this controversy arose. On February 18, 1972, the three girls were accompanied to the principal’s office by Mrs. Curtis Powell, a home economics teacher, where they volunteered to Mr. Waller that they had “spiked” the punch at a recent extracurricular home economics class function. They related to him, through Mrs. Powell that on the day of the spiking incident, someone (it is not clear who) suggested that the punch be spiked. The three girls obtained permission to leave the campus and traveled to a tavern in Oklahoma where Jo Wall purchased two 12-ounce bottles of a flavored malt beverage, “Right Time.” The three students then purchased six 10-ounce containers of a soft drink and combined the total eighty-four ounces of liquid in a milk carton, and returned with the mixture to school. To the liquid was then added enough water to total one and one-half gallons of punch, which was served at the gathering.

A disciplinary regulation of the Mena Special School District provides:

“3. Suspension
-» * * -x- -x-
“b. Valid cause for suspension from school on first offense:
“Pupils found to be guilty of any of the following shall be suspended from school on the first offense for the balance of the semester and such suspension will be noted on the permanent record of the student along with reason for suspension.
* * * * -x- *
“(4) The use of intoxicating beverages or possession of same or at a school sponsored activity.”

Pursuant to this regulation, Principal Waller suspended the three girls from classes and extracurricular activity for one week, and told them that ultimate disposition would be in the hands of the School Board. He added, however, that he and Mrs. Powell would intercede for them and ask for leniency.

Without adequate notice to the students and with no notice to their parents, a special meeting of the School Board was held the night of February 18 to consider the matter. The only people in attendance were the members of the Board, Mr. Inlow, Mr. Waller and Mrs. Powell. Mrs. Powell relayed the girls’ statements to the Board and she, along with Mr. Waller, recommended leniency. Shortly after these recommendations were made, a telephone call was received by Mr. Inlow. The caller was Mrs. Powell’s husband, also a teacher at the school. He informed Mr. Inlow that he (Powell) had been told that Jo Wall had been involved in an altercation with another student after a basketball game that evening. Mr. Inlow then informed the Board of the substance of his conversation with Powell, leaving out the name of the student involved. With this, Mrs. Powell and Principal Waller withdrew their recommendations and “washed their hands” of the matter. The Board voted to suspend all three students for the balance of the semester.

The School Board considered the matter for a second time on March 2, 1972. Present at this meeting were the members of the Board, Mr. Inlow, the appellants, their parents and counsel for the appellants and appellees. Neither Mr. Waller nor Mrs. Powell, the only two who had testified at the February 18 meeting, was present, although they were in their respective offices in the building during this time. The Board presented a written statement, which it described as a statement of facts found by it. The students related their story to the Board and offered their apologies. The Board voted to uphold the suspension, and the hearing ended.

Thereafter, two of the students— Strickland and Crain — commenced an action in United States District Court under 42 U.S.C. § 1983. They alleged that they had been deprived of the right to attend school without benefit of due process. They asked that they be reinstated, that the defendants be enjoined from imposing sanctions, and that the rule with respect to intoxicants be declared invalid and void. After an evidentiary hearing on a motion for a preliminary injunction, the District Court urged the appellees to reinstate the students, but refused to order the Board to take such action, apparently on the grounds that the students had not made an adequate showing of irreparable injury and had failed to convince the court that they were likely to prevail on the merits.

The students subsequently amended their complaint, adding a prayer for damages. The matter was then tried to a jury. The defendants moved for a directed verdict, apparently at the close of the plaintiffs’ case. This motion was denied. After the jury failed to reach a verdict, the court declared a mistrial. The court subsequently granted the defendants’ motions for judgment in accordance with their motions for a directed verdict and denied the plaintiffs’ motion for a new trial.

The students contend on appeal that the trial court erred: in denying them equitable relief; in failing to declare the rule with respect to the possession or use of intoxicating beverages invalid; in erroneously instructing the jury with respect to good faith as a defense; and in refusing to grant the students a new trial.

The law with respect to the rights of students is still developing. We think it is clear, however, that the following general principles are reasonably well established. The responsibility for public education is primarily the concern of the states. The exercise of this responsibility, however, must be consistent with federal constitutional requirements. School boards have the right to adopt reasonable rules and regulations governing the conduct of high school students and regulations proscribing the possession or consumption of intoxicating beverages by students at school functions are reasonable. Students cannot, however, be given lengthy suspensions for violating valid rules without being accorded substantive and procedural due process. If they are given such a suspension without the benefit of due process, they may bring a § 1983 action for declaratory and injunctive relief against the school district, the school board and those administrators involved in the decision. They may also bring an action for damages against the individual members of the board and the administrators of the school system who participated in the decision. Good faith is a defense in damage actions, but not in actions for equitable relief. With these general principles in mind, we turn to the issues raised here.

We believe that the regulation which prohibits the possession or consumption of intoxicants by Mena High School students at school or at a school function is reasonable.

We hold that the suspensions for the balance of the semester imposed by the Board were severe enough to require that due process be afforded the affected students. They resulted in the girls effectively losing nearly a full year’s credits.

We think it clear that the students were denied procedural due process at the February 18 meeting of the Board. Their parents were not notified of the meeting, and were not given an opportunity to appear at it. We recognize that the March 2 meeting may have cured the procedural defects because it was held promptly after the suspension, and because the students and their parents were given notice of the time and place of the meeting and were given an opportunity to present evidence. But we need not decide whether, in fact, the meeting did so because the students were denied substantive due process at both meetings.

To justify the suspension, it was necessary for the Board to establish that the students possessed or used an “intoxicating” beverage at a school-sponsored activity. No evidence was presented at either meeting to establish the alcoholic content of the liquid brought to the campus. Moreover, the Board made no finding that the liquid was intoxicating. The only evidence as to' the nature of the drink was that supplied by the girls, and it is clear that they did not know whether the beverage was intoxicating or not. The District Court recognized this void in its March 7 findings of fact. It stated:

“I have had grave questions throughout this trial as to whether this concoction from which these students got such a terrific charge was ever an intoxicating beverage. * * * [T]he term ‘intoxicating beverage’ as used in the manual is not defined but the term ‘intoxicating liquid’ is certainly well defined under the Arkansas laws and it provides that it must be a content in excess of 3.2 or 5 percent by weight and I am afraid the School Board is or has made a mistake here but I do not see any constitutional thing within the jurisdiction of this Court that requires any intervention by the Court at this time on the temporary application. If it ever reaches the matter of proof on the intoxicating angle I don’t think you will ever be able to prove that thing there— in spite of the fact that these little girls giggled around and got themselves kicked out of school on such a silly thing — I don’t think you will ever be able to prove that that stuff is intoxicating.”

For reasons not apparent from the record before us, the court failed to discuss this absence of evidence in its final opinion and made no finding that the School Board had determined that the beverage brought to the school by the girls was intoxicating.. Under these circumstances, we have no alternative but to find that the students were denied substantive due process and that they were entitled to have their records cleared and to be reinstated. As reinstatement is no longer possible, the students are entitled to have their records cleared and to be relieved of any punishments that may be of a continuing nature.

Lest we be misunderstood, we make it clear that the School District can prohibit the use and possession of any alcoholic beverages if it desires, or it may continue its present policy and bar intoxicating beverages only.

We turn then to the question of whether the trial court properly directed a verdict against the students as to their claim for damages as against all defendants.

The directed verdict was appropriate as to the School District because under the doctrine of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), a school district is immune from damages in a § 1983 action.

It was appropriate as to Superintendent Inlow and Principal Waller because there is no evidence in the record to support a claim against them. Neither had a vote in the suspension proceedings and neither recommended that the girls be suspended.

It was inappropriate as to the individual School Board members because the record shows clearly that the plaintiffs established that they had been suspended without regard to substantive due process and the defense of good faith was not established as a matter of law. Moreover, the court took an erroneous view of the law. It instructed the jury that the plaintiffs had to prove that the defendants acted with malice toward the plaintiffs. No such specific intent need be proved to recover compensatory damages. It need only be established that the defendants did not, in the light of all the circumstances, act in good faith. The test is an objective, rather than a subjective, one. The appellants must accordingly be given a new trial on the issue of damages with respect to the defendant School Board members.

We remand to the District Court for action consistent with this opinion. An attorney’s fee in the sum of $500.00 is awarded to counsel for the appellants. Costs will be taxed against all appellees except S. L. Inlow, Duddy Waller, and Mena Special School District.

ON PETITION FOR REHEARING

MEHAFFY, Chief Judge,

joined by STEPHENSON and WEBSTER, Circuit Judges, dissenting from denial of the petition for rehearing en banc.

The appellees in this case have filed a petition pursuant to Fed.R.App.P. 40 for a rehearing with suggestion for a rehearing en banc. The Arkansas School Boards Association has joined as amicus curiae in support of the appellees’ petition. After an examination of the panel’s opinion in this case and of the above-mentioned petitions I voted to grant a rehearing en banc. Although a majority of the active judges of this court voted to deny appellees’ petition, I feel compelled to respectfully dissent from the denial of the petition for rehearing en banc.

My principal disagreement with the panel's opinion involves its use of substantive due process as the basis for reversal. I fully recognize that a public high school student has a very strong interest in his or her education. I also recognize that the student’s interest in public education enjoys very important procedural and substantive federal constitutional protection from certain types of unwarranted state action. I cannot agree, however, with the panel’s conclusion that the due process clause of the fourteenth amendment empowers this or any other federal court to review every public school disciplinary action on the basis of sufficiency of the evidence. Instead, I am firmly convinced that the substantive reach of the due process clause on the public school campus is limited to the protection of specifically identifiable federal constitutional rights.

This is not a case where the school board has invaded federally protected areas of speech, association, religion, or equality of race or sex. Nor is this a ease where the procedure accorded the students was inadequate, unreasonable, or unfair. Instead, as the panel itself concludes, this is a case where the school board had established a reasonable rule, the students had notice of the rule, the students by their own admission had violated the rule, and, after full procedural protection was afforded, the rule was enforced. Under such circumstances I fail to perceive any federal constitutional question in appellants’ attack.

I am, of course, aware that “substantive due process” has in the past been used without regard to any specific constitutional safeguard to attack a wide variety of state action. E. g., Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905); Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441 (1915). But I thought the federal judiciary had long since rejected such a freewheeling, use of “substantive due process” because it inevitably had led to an unwarranted invasion of the duties and responsibilities of state and local governments. E. g., Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963). None of the cases cited by the panel supports such an unfettered reading of the due process clause; instead, all of the cases involved attacks either on the procedure accorded or on an alleged invasion of some specifically protected right such as free speech. I fear that the panel’s opinion now places every federal court, at least in this circuit, in the position of serving as a board of appeal for every disciplined public school student who feels that his punishment was too severe or that the school board’s decision was not supported by substantial evidence. I feel that this function is one that is the sole responsibility of the state and local governments, which in this case have long provided an appropriate judicial remedy. E. g., Douglas v. Campbell, 89 Ark. 254, 116 S.W. 211 (1909).

      . The practical effect of the suspension was to cause the girls to fail their entire sophomore year. It will be possible for them to graduate with their class, but they must complete three academic years in two by taking an increased course load during their final two years in school.

      . "FACTS FOUND BY SCHOOL BOARD

      “1. That Virginia Crain, Peggy Strickland and Jo Wall are students of Mena High School and subject to the governing rules and policies of Mena High School.
      “2. That on or about Feburary 7, 1972 these three girls were charged with the responsibility of providing refreshments for a school function, being a gathering of students of the Home Economic class and some of their parents, on school premises, being the auditorium building of Mena High School, and being under the direction of Mrs. Curtis Powell.
      “3. That the three girls in question traveled to Oklahoma, purchased a number of bottles of malt liquor, a beer type beverage, and later went onto school premises with the alcoholic beverage and put two or more of the bottles of the drink into the punch or liquid refreshment which was to be served to members of the class and parents.”

      . The opinion of the trial court is published at 348 F.Supp. 244 (W.D.Ark.1972).

      . Jones v. Snead, 431 F.2d 1115 (8th Cir. 1970).

      . Tate v. Board of Ed. of Jonesboro, Ark., Spec. Sell. Dist., 453 F.2d 975 (8th Cir. 1972); Esteban v. Central Missouri State College, 415 F.2d 1077 (8th Cir. 1969), cert. denied, 398 U.S. 965, 90 S.Ct. 2169, 26 D.Ed.2d 548 (1970).

      . Jones v. Snead, supra; Tate v. Board of Ed. of Jonesboro, Ark., Spec. Sell. Dist., supra; Farrell v. Joel, 437 F.2d 160 (2nd Cir. 1971); Esteban v. Central Missouri State College, supra; Wasson v. Trowbridge, 382 F.2d 807 (2nd Cir. 1967); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 D.Ed.2d 193 (1961). See also, “Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education,” 45 F.R.D. 133, 147 (W.D.Mo. 1968).

      . Gouge v. Joint School District No. 1, 310 F.Supp. 984 (W.D.Wis.1970).

      . Gouge v. Joint School District No. 1, supra. See, 2 T. Emerson, D. Haber & N. Dorsen, Political and Civil Rights in the United States (3rd ed. 1967).

      . Although the regulation seems to call for mandatory suspension for the balance of the semester and the “Administrative Policies” for the Mena Public Schools do not provide fer a hearing in the event of expulsion or suspension, we need not discuss the appellants’ challenge of the regulation on those grounds. The Board apparently did not view the regulation as restricting their actions, for they did hold a belated hearing and did consider imposing a less severe penalty.

      . See, Pervis v. LaMarque Independent School District, 466 F.2d 1054 (5th Cir. 1972).. In that case, the Court ruled that where students were suspended without a hearing for • three months, a subsequent hearing did not cure the initial constitutional deprivation. The Court, in discussing the dangers inherent in the contrary view, states at 1058:
      “ * * * How, then, could they have been made whole? They would have lost some 3 months of education. This result cannot obtain. Procedural due process must, on the facts present in this case, be given prior to imposition of serious suspensions.”

      . We note here that an exception to the Monroe rule has been developed in that line of cases following Harkless v. Sweeney Independent School District, 427 F.2d 319 (5th Cir. 1970), cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971). That Court held that claims for back pay by teachers are part of the equitable relief for reinstatement and not damages. See, United States of America v. Cotton Plant School District No. 1, et al., 479 F.2d 671 (8th Cir. 1973); Moore v. Board of Ed. of Chidester Sch. Dist. No. 59, Ark., 448 F.2d 709 (8th Cir. 1971).

      . McLaughlin v. Tilendis, 398 F.2d 287 (7th Cir. 1968); Gouge v. Joint School District No. 1, supra. See generally, Wash.U.L. Qtly. 666 (1971); Weddle, Damages Under § 1983: The School Context, - Ind.L.J. 521 (-).


author: AINSWORTH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Ernest JAQUA, Defendant-Appellant.
    No. 72-3620
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 30, 1973.
    Victor Arditti, John H. Whitaker, El Paso, Tex., for defendant-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Edward Marquez, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, 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.

   AINSWORTH, Circuit Judge:

James Ernest Jaqua was convicted of resisting, assaulting, opposing, impeding, and interfering with an officer of the United States Border Patrol, while that officer was engaged in the performance of his official duties, in violation of 18 U.S.C. § 111. Various issues are presented on appeal, three of which constitute prejudicial error. We reverse because the district court erred in allowing the Government to present inadmissible evidence of (1) prior criminal activities, (2) inculpatory statements of appellant elicited in violation of his rights under Miranda, and (3) inflammatory remarks in the Government’s argument to the jury.

On August 28, 1973, United States Border Patrol Agents Scott and Young were on routine patrol duty at El Paso, Texas, watching for aliens who might cross the border between the United States and Mexico. They observed from a distance that a Volkswagen stopped at a parking lot, that appellant Jaqua alighted therefrom and within several minutes returned to the vehicle and drove off. Their suspicions having been aroused, the agents followed the Volkswagen, and by the use of a siren and flashing headlights signalled Jaqua to stop. He did not stop or slow down until he was forced to do so by the action of Agent Scott in pulling the patrol car in front of the Volkswagen.

The agents testified that appellant was hostile, profane and belligerent, but after they identified themselves appellant consented to a search of his vehicle. No aliens or contraband was found. Jaqua was asked why he did not stop and replied, “It is late, and I want to go home. You are lucky I didn’t have my pickup truck or I would have rolled right on over you.” Jaqua was told that he was being held for further routine investigation, to determine if the vehicle was stolen or whether there was a warrant out on him, and he replied, “To hell with the investigation, I want to go home, you can mail my license to me.” When he was told that he was not going anywhere, Jaqua proceeded to enter his car, whereupon Agent Scott stepped in front of the vehicle and told him he could not leave. Jaqua pulled forward approximately 12 inches, striking Scott across the shins. Officers Capraro and Yanez of the El Paso Police Department shortly thereafter arrived on the scene in response to a call from Agent Young. Capraro questioned the agents and Jaqua and was informed of their respective versions of the incident. Jaqua was then placed under arrest by the police officers. Both agents admitted that Jaqua had not been speeding, trying to avoid them, or otherwise driving in a reckless manner. However, they could not understand his refusal to stop.

Richard M. Capraro, a member of the El Paso Police Department, testified that when he arrived Jaqua was already under arrest. Upon questioning, Jaqua told Capraro that he did not stop because he was scared, and that when the patrol car came up alongside of him he was so frightened that if he had had a gun he would have shot the agents. Jaqua explained that he had worked a long time that night and was tired; all that he cared about was going home, emphasizing his remarks with profanity. Following this conversation Capraro and Yanez placed Jaqua in the police car and drove him to the office of the Justice of the Peace. It was not until Jaqua arrived there that he was advised of his constitutional rights. Appellant was initially charged with the state offense of assault with a motor vehicle which was later dismissed.

Jaqua testified in his own behalf. He denied ever having the intention of running over Agent Scott and explained the encounter as accidental. On cross-examination, in an effort to impeach defendant’s testimony of lack of intent, Government counsel asked him if it was not true that he had a bad temper, to which he replied, “No Sir, I don’t think I have any worse temper than anyone else.” Over objection, overruled by the trial judge, Government counsel then proceeded to question Jaqua in regard to his alleged involvement in prior assaults in the years 1962, 1965, and 1968. Defendant admitted being involved in disagreements with other people but denied any assaults. The 1962 incident involved a shooting into the home of his ex-wife, which defendant stated turned out to be the act of her boyfriend, but admitted that as a result of the incident his wife had him placed under a peace bond which was released by the Justice of the Peace. The 1965 incident involved the striking of a lady. He recalled the encounter but denied striking her. The 1968 incident involved the destruction of firewood valued at less than $5. Defendant stated that he had been in a part-time business cutting firewood on a ditch which belongs to the United States Bureau of Reclamation, that he got into an argument with a man who claimed he owned the wood. On redirect, he testified that there had been no convictions resulting from any of the incidents.

The Government contends that the evidence of appellant’s prior so-called “criminal activity” was admissible under several theories — to establish intent and knowledge, to rebut allegations of mistake or accident made by appellant, and to impeach him on the issue of his character, specifically that of his temper. We disagree.

In Gilstrap v. United States, 5 Cir., 1968, 389 F.2d 6, 9, we said:

“Generally, evidence of prior criminal activity of a similar nature is inadmissible to prove the commission of a later offense. However, there are exceptions to this general rule of exclusion, and where intent and knowledge are essential elements of the crime for which the defendant is being tried, evidence of other transactions, even though criminal in nature, is admissible to prove the necessary criminal intent or guilty knowledge, if the transactions are so connected with the offense charged that they serve to show a general pattern. Pardo v. United States, 5 Cir., 1966, 369 F.2d 922. Evidence that similar or related offenses were committed over a period of time tends to show a consistent pattern of conduct highly relevant to the issue of intent. Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S.Ct. 766, 769, 93 L.Ed. 919 .(1949).” (Emphasis supplied.)

We further said in Gilstrap, 389 F.2d at 10:

“The evidence must be of similar acts occurring reasonably near in time and reflecting intent similar to that charged in this case.” (Emphasis supplied.)

The Government’s reliance on Gilstrap is misplaced. There is no similarity or discernible pattern between the transactions inquired into and the offense charged, nor is there any evidence in the record that Jaqua committed these acts. The error in allowing interrogation of Jaqua about these incidents was further compounded by permitting Government counsel to refer repeatedly to Jaqua’s “prior history of criminal activity” and his “record and background.” The prosecution’s remarks were without evidentiary foundation and far exceeded fair comment. We cannot ascribe to them the label of “harmless error.” See United States v. Garber, 5 Cir., 1972, 471 F.2d 212, 217; Ginsberg v. United States, 5 Cir., 1958, 257 F.2d 950; Steele v. United States, 5 Cir., 1955, 222 F.2d 628; United States v. Sanchez, 5 Cir., 1973, 482 F.2d 5.

Reversed and remanded.

      . Appellant also asserts as error lack of probable cause for his arrest and detention, delay in being brought before a Federal Magistrate, failure of the court to grant his motion for acquittal, refusal of the court to give certain instructions. We find no merit to these contentions.

      . Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . See also United States v. Martinez, 5 Cir., 1972, 466 F.2d 679, 683; United States v. Hayes, 5 Cir., 1971, 444 F.2d 472, 474; United States v. McGlamory, 5 Cir., 1971, 441 F.2d 130, 137; United States v. Pittman, 5 Cir., 1971, 439 F.2d 906, 908; United States v. Justice, 5 Cir., 1970, 431 F.2d 30, 32-33; Weiss v. United States, 5 Cir., 1941, 122 F.2d 675, 682; United States v. Sanchez, 5 Cir., 1973, 482 F.2d 5.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. John R. SAWYER, Jr., Defendant-Appellant.
    No. 73-1099.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted June 20, 1973.
    Decided Sept. 21, 1973.

      Richard J. Smith, Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., Victor K. Sizemore, Asst. U. S. Atty., Albuquerque, N. M., on the brief), for plaintiff-appellee.
    Richard B. Gavend, Denver, Colo., for defendant-appellant.
    Before JONES , SETH and DOYLE,

       of the Fifth Circuit, sitting by designation.

   Circuit Judges.

PER CURIAM:

The appellant, John R. Sawyer, Jr., was convicted on all counts of a four count indictment charging violations of 21 U.S.C.A. § 841(a)(1). Counts I and II charged possession and distribution of heroin on May 17, 1972. Counts III and IV charged like offenses on May 27, 1972. He was sentenced to five years imprisonment on each count with the sentences to run concurrently.

The evidence showed that on May 17, 1972, Michael G. Salazar, a narcotic agent with the New Mexico State Police and working in the Drug Abuse Law Enforcement Program, was introduced to the appellant at his residence in Albuquerque by a confidential informant. Agent Salazar told the appellant that he wanted to purchase some heroin. After reaching an agreement as to the price, the appellant entered the house and shortly thereafter returned with ten tin foil packets of heroin which he sold to Agent Salazar for fifty dollars. After the agent thanked him for the heroin, the appellant indicated that he looked forward to doing further business with Agent Salazar.

This transaction was watched by Special Agent Alan Caraway of the Bureau of Narcotics and Dangerous Drugs, Detective Sergeant Louis P. Romero of the Bernalillo County, New Mexico, Sheriff’s Office, and Detective James Boman of the Albuquerque Police Department, all of whom were assigned to the office for Drug Abuse Law Enforcement.

On May 23, 1972 Agent Salazar again went to the appellant’s residence. Agent Salazar testified that he was greeted by the appellant, and was asked by the appellant if he wanted to purchase some more heroin. Agent Salazar replied that he did. The appellant pointed to a woman standing in the yard and said to Agent Salazar, “Go see my old lady, she’ll give you what you want.” Salazar went to the woman, who identified herself as “Evelyn.” The woman went into the house, and returned with ten tin foil packets of heroin which she handed to Agent Salazar in exchange for fifty dollars. This meeting was observed by Romero and Boman. The appellant testified in his own behalf and called three other witnesses. This testimony asserted an alibi defense. Each witness stated that the appellant was in Taos, New Mexico during the entire month of May, 1972, volunteering his services to the formation of a methadone clinic. There was testimony that during the time when the appellant claimed he was in Taos, the house was occupied by the appellant’s nephew and his wife. The appellant denied being in Albuquerque during the month of May as well as expressly denying that he sold heroin to Agent Salazar. The appellant testified that he and his nephew were often mistaken for each other because of a similarity of appearance.

On rebuttal, Agent Salazar stated that he was certain that it was the appellant with whom he had dealt on May 17 and May 23. Agent Salazar further testified that he knew appellant’s nephew and saw no resemblance between the two men.

Officer James Boman of the City of Albuquerque Police Department, who was a surveilling agent on both days, testified that he had known the appellant since 1962 or 1963, and that there was no doubt in his mind that it was the appellant who met Agent Salazar on May 17 and May 23.

During the trial Agent Caraway, one of those who were observers of the May 17th transaction, testified that Agent Salazar was in possession of heroin after meeting with the appellant. During cross-examination, the witness was asked questions and gave answers as follows:

Q: “Now this confidential informant, to your knowledge, was he a user of heroin ?”
A: “Yes, sir.”
Q: “Was he high that day, do you know?” . . . (after objection, question was allowed.)
Q: “You said that this cooperating individual was a heroin user, to your knowledge, correct?”
A: “No, I don’t believe you said cooperating individual. Didn’t you say”
Q: “Or confidential informant? The man that went with Mr. Salazar?”
A: “Well, I misunderstood you sir. I thought you were referring to the defendant. That the person whom”

At this point counsel for the appellant moved for a mistrial. The motion was denied. The court stated to the jury that whether or not appellant was a heroin user was not relevant to the issues before them and that it was withdrawn from their consideration.

In his argument, Government counsel made this statement to the jury:

“As I said, rarely can anything be proved beyond all possible doubt; beyond all possible doubt; so you have to sit, and you have been better to view the facts in this case in a better position than either Mr. McCarty [defense counsel] or myself, because we have been concerned with trying a case; putting on evidence and so forth. So you should have the facts better than anyone in this courtroom; perhaps other than the defendant, himself, to make your decision on.”

Counsel for the appellant moved for a mistrial, contending that the language was improper, inflammatory and prejudicial. The trial court overruled the motion and in so doing noted that the defendant had taken the stand and testified that he was not in Albuquerque during the month when the offenses were committed. The court observed that the statement was not one which it would recommend but it was not, under the circumstances of the particular case, prejudicial to the appellant. The remarks of counsel were oratory, neither more nor less. We cannot see that they were either helpful or harmful to either prosecution or defense.

When appellant’s counsel asked witness Caraway on cross-examination if the “cooperating individual” was a heroin user, his affirmative answer was intended to refer to the defendant. The defendant was indeed cooperating if we are to believe, as the jury believed, of his cooperation in making sales of heroin. It cannot be said that the witness was not permitted to believe the reference was to the defendant. The ambiguous phrase was used by appellant’s counsel and the prejudicial response, if it was prejudicial, was invited by appellant’s counsel. The granting of a mistrial would not have been warranted and the denial of it was not error.

The appellant asserts that the evidence was insufficient to submit the cause to the jury on Counts III and IV, and that reversible error was committed in denying the appellant’s motion for an acquittal. Then, with more ingenuity than law or logic, the appellant contends that, assuming an acquittal should have been directed on Counts III and IV, the conviction on Counts I and II was tainted by the submission to the jury of the charges of Counts III and IV along with Counts I and II. While the Count I and II transaction was not wholly unrelated to the Count III and IV transaction, the relationship was sufficiently remote in time as to render the error, if any there was, a harmless error.

We need not, and do not, consider whether there was evidence sufficient to submit Counts III and IV to the jury. There being no prejudicial error with respect to the Count I and II convictions, and the sentences on all counts running concurrently, the determination of validity of the conviction on any of the counts requires an affirmance of the judgment. Typical of the many pronouncements of this principle by this Court is the following:

“Where the conviction on one or more counts of a multi-count indictment is upheld, an appellate court need not determine the validity of convictions on other counts carrying sentences concurrent with that of the valid convictions.” Baca v. United States, 10th Cir. 1967, 383 F.2d 154, 157, cert. den. 390 U.S. 929, 88 S.Ct. 868, 19 L.Ed.2d 994.

Since no reversible error is shown, the judgment and sentence of the district court is

Affirmed.


author: HEANEY, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Howard Wayne MOSTAD, Appellant.
    No. 73-1208.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 13, 1973.
    Decided Oct. 4, 1973.
    Jack S. Nordby, St. Paul, Minn., for appellant.
    Joseph T. Walbran, Asst. U. S. Atty., Minneapolis, Minn., Robert G. Renner, U. S. Atty., Minneapolis, Minn., was with him on brief, for appellee.
    Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.
   HEANEY, Circuit Judge.

The defendant, Howard Wayne Mos-tad, was convicted on two counts of violating that provision of the Omnibus Crime Control and Safe Streets Act of 1968 which prohibits possession of a firearm by one who has previously been convicted of a felony. He was sentenced to two years on each count; the sentences to run consecutively.

Mostad contends that “it is fundamentally unfair under historical and prevailing notions of due process of law” to apply the prohibition of this statute to him under the circumstances revealed by the record in this case.

Mostad was convicted in a Minnesota State District Court of a felony on October 26, 1967, and was thereafter placed on probation. On January 7, 1972, a Minnesota State District Judge ordered, pursuant to Minn.Stat.Ann. § 609.165, that he be “discharged from probation, restored to all civil rights and to full citizenship with full right to vote and hold office the same as if said conviction had not taken place.”

Under § 1202(a)(1), the government need not prove specific intent to violate the law or knowledge on the part of the defendant that he is violating the law. It must prove that the defendant knowingly possessed the firearm. United States v. Wiley, 478 F.2d 415 (8th Cir. 1973); United States v. Crow, 439 F.2d 1193 (9th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972). The government has met that burden here. Moreover, this Court upheld the eonstitutionality of this statute in United States v. Mancino, 474 F.2d 1240 (8th Cir. 1973), and in United States v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972).

The Act exempts from its provisions “ * * * any person who has been pardoned by the President of the United States or the chief executive of a State and has expressly been authorized by the President of such chief executive, as the ease may be, to receive, possess or transport in commerce a firearm.” 18 U.S.C. App. § 1203(2) (1968). The defendant is not such a person. He belongs to a general class of convicted felons whose civil rights have been restored by a statute that is silent with respect to the right of such persons to possess firearms. If the Congress desires to extend the exemption to persons in this class, it can do so; but we find no evidence of such intent in the language in the legislative history of the Act. See, Stevens v. United States, 440 F.2d 144 (6th Cir. 1971). This result may seem confusing and harsh, but the classification established by Congress is, in our view, a reasonable one and cannot be overturned by us.

Affirmed.

      . “(a) Any person who—
      “(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, H* * *
      “and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.”
      18 U.S.C.App. § 1202(a) (1) (1968).

      . “Subdivision 1. When a person has been deprived of his civil rights by reason of conviction of a crime and is thereafter discharged, such discharge shall restore him to all his civil rights and to full citizenship, with full right to vote and hold office, the same as if such conviction had not taken place, and the order of discharge shall so provide.

        “Subd. 2. The discharge may be:
      “(1) By order of the court following stay of sentence or stay of execution of sentence ; or
      “(2) By order of the adult corrections commission or youth conservation commission prior to expiration of sentence; or “ (3) Upon expiration of sentence.

        “Subd. S. This section does not apply to a forfeiture of and disqualification for public office as provided in section 609.42, subdivision 2. Laws 1963, c. 753.” Minn.Stat.Ann. § 609.165 (1963).
      Minn.Stat.Ann. § 638.02 (1963) describes the process for obtaining a pardon. It provides in part:
      “Subd. 2. Any person, convicted of crime in any court of this state, who has served the sentence imposed by the court and has been discharged of the sentence either by order of court or by operation of law, may petition the board of pardons for the granting of a pardon extraordinary. If the board of pardons shall determine that such person has been convicted of no criminal good character and reputation, the board may, in its discretion, grant to such person a pardon extraordinary. Such pardon extraordinary, when granted, shall have the effect of restoring such person to all civil rights, and shall have the effect of setting aside the conviction and nullifying the same acts other than the act upon which such conviction was founded and is of and of purging such person thereof and such person shall never thereafter be required to disclose the conviction at any time or place other than in a judicial proceeding thereafter instituted.”

      . One District Court ruled that where a defendant had received a full pardon by the Governor and Governor’s Council of New Hampshire:
      “The failure of the pardon to expressly state that Briand is authorized to carry firearms is not controlling. Briand was granted a full pardon by the Governor and Council of New Hampshire which I construe to mean that Briand is entitled to all the rights accorded any citizen, including the right to possess firearms. * * * ”

      United States v. One Lot of Eighteen Firearms, 325 F.Supp. 1326, 1328 (D.C.N.H. 1971) (Emphasis included).


author: EDWARDS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Orville DUNAVAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Edward MITCHELL, Defendant-Appellant.
    Nos. 71-1378, 71-1379.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 15, 1971.
    Decided Oct. 5, 1973.

      Dale Quillen, Nashville, Tenn., on brief for appellants.
    Ira E. Parker, III, Asst. U. S. Atty., Nashville, Tenn., for appellee; Charles H. Anderson, U. S. Atty., on brief.
    Before WEICK and EDWARDS, Circuit Judges, and McALLISTER, Senior Circuit Judge.
   EDWARDS, Circuit Judge.

Appellants Dunavan and Mitchell appeal from convictions for robbing a federally insured bank of approximately $40,000 in violation of 18 U.S.C. § 2113(d) (1970). Each was sentenced to 12 years after a jury trial in the United States District Court for the Middle District of Tennessee.

On May 11, 1970, the Green Hills Branch of the Third National Bank in Nashville, Tennessee, was held up and robbed.

On May 17, 1970, appellants Dunavan and Mitchell were arrested at Pensacola, Florida, and found to be in possession of proceeds of the Green Hills Branch bank robbery. The circumstances leading to the arrests produce the two appellate issues in this appeal.

At about 4 p. m. on Sunday, May 17, 1970, appellant Dunavan was found by passers-by at a beach near Pensacola, Florida, in a disabled car which had set the grass on fire below it. He was foaming at the mouth and unable to talk. They removed him from the car, put out the fire, and went through the automobile seeking to identify him, thereby finding a Social Security card, $961 in cash, a motel key, and a car rental agreement for the automobile in appellant Mitchell’s name. They also found two locked briefcases and called the police. All of these items were turned over to a Deputy Sheriff, who dispatched Dunavan to the hospital and then went to the motel, taking the briefcases with him. He testified that he and other officers who saw Dunavan at the scene “thought he was, going to die,” and that he and two other officers entered Dunavan’s motel room with the key which had been turned over to him:

So, we decided to go on in the room and see if we could find some identification or information or something to give the hospital about Mr. Dunavan.

In the motel room the officers found two small keys which opened one of the briefcases. It was full of money, banded with Green Hills Branch Bank bands, marked with red dye and smelling of gas. Some of the money was “bait” money (identifiable) and the dye and gas resulted from a bank anti-robbery device.

The officers had seen a woman emerge from an adjoining room as they arrived and had seen that the door was open between the two rooms. On questioning this woman they learned that one of two men occupying the rooms was a diabetic and kept his insulin in one of the briefcases. After an officer was sent to the hospital to get a key to it from Dunavan, this case was then opened. The insulin and a syringe were found, along with a lot more money marked like the money in the first case.

With a description of Mitchell and information as to his whereabouts from the same woman, two officers then arrested him for “vagrancy” and brought him back to the motel rooms. There Mitchell was warned of his constitutional rights and questioned. He denied knowing anything about the money but gave an account of his whereabouts prior to being in Pensacola, which the government was able at trial to contradict.

On appeal appellant Dunavan contended that the District Court erred in failing to suppress the evidence seized in the two briefcases because it had been seized in violation of the Fourth Amendment.

Appellant Mitchell made the same Fourth Amendment contention and also claimed that he had been illegally arrested and, hence, it was error to admit his statement made to the officers while in custody in the motel room.

On this court’s first consideration of this appeal, 464 F.2d 1166, we were unable to ascertain with certainty from the record the time relationship between appellant Dunavan’s hospitalization, his treatment there, and his release from the hospital and the happening of the search of the first briefcase which provided obvious probable cause for the officers to believe they had a bank robbery on their hands.

The case was thereupon remanded to the District Court “for such additional hearing and findings as may be required to answer the following question :

Whether the police knew that Dunavan had recovered consciousness and been released from the hospital 1) when they entered his motel room, and 2) when they opened the first briefcase?”

At the hearing on remand the District Judge heard four witnesses, including the emergency room nurse at the hospital concerned, one of the officers who participated in the motel room search, the officer who went to the hospital to get the key to the second briefcase, and the officer who kept the police dispatch log.

The District Judge made the following findings:

Based upon the testimony and exhibits introduced at the January hearing and relevant testimony taken at the trial and at the previous hearing on the motion to suppress, the Court finds that the defendant was brought to the hospital on May 17, 1970, while unconscious, and was given an intravenous injection of Sodium Amytal at 4:43 p. m., was finally given an injection of Dextrose at approximately 6:25 p. m., and, as a result of the latter injection, regained consciousness sometime after 6:30 p. m. He definitely was not conscious before the 6:25 injection. The Court also finds that the police officers entered the motel room at approximately 5:15 p. m. on the same day and that the first briefcase was opened a few minutes thereafter, probably about 5:20 p. m. It is manifestly clear, therefore, that the police not only did not know the defendant had regained consciousness when they entered the room and when they opened the first briefcase, he in fact had not regained consciousness at those times.

In relation to both appellate issues stated above, we deem the first and the critical problem to be whether the officers who opened the first briefcase taken from Dunavan’s car did so, as they asserted, as a matter of rendering emergency aid to a person in a seizure, or whether this explanation of their search was a pretext.

The record we have reviewed clearly supports the finding quoted immediately above. The District Judge had originally denied the motion to suppress evidence, holding that the officers’ conduct was pursuant to a lawful lifesaving mission. The additional findings lend added weight to that view.

Appellants, as we read their briefs, do not appear to dispute the proposition that a lawful entry on private premises may be made by law enforcement officers for emergency life-saving measures.

No emergency life-saving exception to the Fourth Amendment’s warrant requirement appears to have been spelled out in any Supreme Court case up to this point. But cases in both the Eighth Circuit and the Second Circuit do support it.

In one of these, the Eighth Circuit said:

For purposes of the instant case, the emergency or exigency doctrine may be stated as follows: police officers may enter a dwelling without a warrant to render emergency aid and assistance to a person whom they reasonably believe to be in distress and in need of that assistance. In applying this doctrine, two principles must be kept in mind. (1) Since the doctrine is an exception to the ordinary Fourth Amendment requirement of a warrant for entry into a home, the burden of proof is on. the state to show that the warrantless entry fell within the exception. McDonald v. United States, 335 U.S. [451] at 456, 69 S.Ct. 191 [93 L.Ed. 153]; United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951). (2) An objective standard as to the reasonableness of the officer’s belief must be applied.
“* * * [I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. * * * And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). Root v. Gauper, 438 F.2d 361, 364-365 (8th Cir. 1971).

See also United States v. Goldenstein, 456 F.2d 1006 (8th Cir. 1972).

If anything, the Second Circuit’s holding is more emphatic:

The right of the police to enter and investigate in an emergency without the accompanying intent to either search or arrest is inherent in the very nature of their duties as peace officers, and derives from the common law. See generally Read v. Case, 4 Conn. 166 (1822). Indeed it is obvious that had the patrolmen been denied entry to the apartment they would have had the right, if not the duty, to gain entry forcibly. See Wayne v. United States, [115 U.S.App.D.C. 234, 318 F.2d 205, cert. denied, 375 U.S. 860, 84 S.Ct. 125, 11 L.Ed.2d 86 (1963)] supra (Burger, J., concurring). United States v. Barone, 330 F.2d 543, 545 (2d Cir.), cert. denied, 377 U.S. 1004, 84 S.Ct. 1940, 12 L.Ed.2d 1053 (1964).

Over and above such cases, there is explicit recognition of an emergency doctrine in dictum from several eases of the Supreme Court. In a case holding the search there involved to be unlawful, Justice Douglas observed:

This is not a case where the officers, passing by on the street, hear a shot and a cry for help and demand entrance in the name of the law. McDonald v. United States, 335 U.S. 451, 454, 69 S.Ct. 191, 192, 93 L.Ed. 153 (1948).

See also United States v. Jeffers, 342 U.S. 48, 51-52, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 92 L.Ed. 436 (1947).

We are aware that there may be cases where police assertions of Good Samaritan motives might (as charged here) be pretextual rather than real. On the other hand, particularly in big city life, the Good Samaritan of today is more likely to wear a blue coat than any other. While we believe the government would have the burden of proving the defense (as it clearly has done here), we agree with the holdings of the Eighth and Second Circuits quoted above, that a legitimate life-saving purpose may provide another example of the exigent cireumstanees which excuse failure to follow the warrant requirements of the Fourth Amendment.

We find no merit as to appellant Mitchell’s claim of error in admitting his statements after arrest and appropriate 'Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The fact that he was told that he was being arrested for vagrancy and that the Florida vagrancy statute was subsequently declared unconstitutional (Smith v. Florida, 405 U.S. 172, 92 S.Ct. 848, 31 L.Ed.2d 138 (1972)) does not in our view serve to make his arrest unlawful or his statements inadmissible. When the police officers once opened the first briefcase, they had positive evidence before their eyes that they were on the trail of bank robbers. They knew that Mitchell and Dunavan were traveling together and were occupying adjacent motel rooms with the door open between them. The briefcase had been found in a ear which they knew Mitchell had rented. If they had not arrested him, they would have been derelict in their duty as peace officers. We do not condone telling a person that he is being held for an offense other than the one which actually motivated the arrest. But this is one occasion where a constable’s blunder does not so offend constitutional rights or fundamental justice as to require that a guilty man goes free.

This Circuit and the Eighth Circuit have dealt squarely with cases where the arresting officers actually were in possession of probable cause to arrest but gave the person arrested either pretextual or illegal reasons for the arrest. United States v. Clemmons, 390 F.2d 407 (6th Cir. 1968); Thunder Horse v. South Dakota, 456 F.2d 1262 (8th Cir. 1972); Klingler v. United States, 409 F.2d 299 (8th Cir. 1969).

The essence of the holding in these cases is that in dealing with a Fourth Amendment issue, the validity of an arrest is to be judged by whether the arresting officers actually had probable cause for the arrest rather than by whether the officers gave the arrested person the right reason.

The judgments of the District Court are affirmed.


text:
    UNITED STATES of America, Appellee, v. Cyrus F. JOHNSON, Jr., Appellant.
    No. 73-1161.
    United States Court of Appeals, Fourth Circuit.
    Submitted June 20, 1973.
    Decided Oct. 2, 1973.

      I. S. Leevy Johnson, Columbia, S. C., on brief, for appellant.
    John K. Grisso, U. S. Atty., and Michael A. Pulliam, Asst. U. S. Atty., on brief, for appellee.
    Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and WIDENER, Circuit Judge.
   PER CURIAM:

Cyrus F. Johnson, Jr., appeals from his conviction of transporting a stolen motor vehicle in interstate commerce, knowing the vehicle to have been stolen, in violation of 18 U.S.C. §§ 2312 and 2. Johnson contends that the evidence was insufficient to prove (1) that the vehicle was stolen and (2) that he was guilty of aiding and abetting the alleged criminal enterprise.

Henry Hight testified that upon his return to Bayside, New York from a business trip in July, 1970, his 1968 brown Cadillac Coupe de Ville, which he had entrusted to his daughter for the duration of his trip, was missing. Hight stated the vehicle’s identification number and testified that only his daughter had been given permission to use the car during July, 1970. Sometime in January, 1971, a 1968 Cadillac bearing the same identification number and containing a Mobil credit card signed by Henry Hight was found by the FBI in Blackville, South Carolina, in the possession of Richard Boatwright, who turned over to an FBI agent three documents in the name of Cyrus Johnson, Jr.: a New York State driver’s license; an Alabama license tag receipt for a 1959 Cadillac; and an Alabama license tag receipt for a 1968 Cadillac. The tags corresponding to the latter receipt were found by FBI agent James O’Keefe in the trunk of Johnson’s 1959 Cadillac during O’Keefe’s first interview with Johnson, which occurred on January 19, 1971.

O’Keefe testified that, on January 27, 1971, Johnson retracted the story he had recounted to O’Keefe during their first meeting and then proceeded to inform O’Keefe that following the theft of a stolen vehicle which he had purchased in April or May, 1970, he told a man named Eddie that he wanted to buy a stolen 1968 Cadillac Coupe de Ville. Eddie made the necessary arrangements, and Johnson acquired the automobile for $350.00. O’Keefe testified further that Johnson told him that Eddie contacted Johnson in January, 1971, and suggested that, in view of the FBI’s recent seizure of seven stolen Cadillacs in the New York area, Johnson should arrange to sell the car. Subsequent to this conversation, there occurred a meeting of Eddie, Richard Boatwright, and Johnson, at which it was agreed that Boatwright would drive the car from New York to South Carolina and attempt to sell it to a certain South Carolina used car dealer who was in the practice of purchasing stolen cars. Since the Alabama plates which were on the 1968 Cadillac had expired, they were removed and replaced with current tags which had been on Johnson’s 1959 Cadillac. Johnson furnished Boatwright with the Alabama registration for both vehicles, gave Boatwright $45.00 for expenses, and agreed to pay the latter a commission if he was able to sell the car. O’Keefe and David Bittner, a friend of Johnson’s, both stated that Johnson told them that he knew that the 1968 Cadillac was stolen at the time he bought it.

Viewed in the light most favorable to the government, this evidence was such that the jury might have found beyond a reasonable doubt that the vehicle was stolen and the Johnson knew that the vehicle was stolen and knowingly associated himself with the plan to transport the vehicle in interstate commerce, and sought by his actions to make the venture succeed. United States v. Sherman, 421 F.2d 198 (4th Cir. 1970); United States v. Dockery, 417 F.2d 330 (4th Cir. 1969).

Accordingly, we dispense with oral argument and affirm the judgment below.

Affirmed.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. John MARZETTE, Appellant.
    No. 73-1302.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 13, 1973.
    Decided Sept. 26, 1973.
    Rehearing and Rehearing Eh. Banc Denied Oct. 24, 1973.
    Ray Carleno, Ferguson, Mo., for appellant.
    William C. Martin, Asst. U.S. Atty., St. Louis, Mo., for appellee.
    Before MATTHES, Senior Circuit Judge, and LAY and ROSS, Circuit Judges.
   PER CURIAM.

Appeal is made from a judgment of conviction arising from violation of 18 U.S.C. § 2113(a) and (b) in the armed robbery of the New Age Federal Savings & Loan Association in St. Louis, Missouri. In essence it is urged on appeal that: (1) the court unduly restricted defense counsel on his voir dire examination of the jury in not allowing him to examine prospective jurors as to the result reached in a previously tried bank robbery case wherein some of the same veniremen had sat on the jury; (2) the evidence was insufficient to prove that the bank was insured by the Federal Savings & Loan Insurance Corporation; (3) the court erred in excluding defendant’s evidence that another person was indicted for the same bank robbery; (4) the court erred in permitting the government to read the indictment to the jury; and (5) the trial judge abused his discretion in sentencing the defendant to a longer sentence than he would have received had he pleaded guilty. Other alleged errors were claimed but conceded in oral argument not to have been prejudicial.

Upon review of the record, we are satisfied there exists no merit to the claims here presented. Parenthetically, we observe that counsel’s complaint that the sentence was longer than that which would have been given had defendant pleaded guilty is not warranted on the present record. There is no indication that the district court added any punitive measure to the sentence simply because the defendant chose to exercise his right to trial by jury. Obviously, if a sentencing court would manifest such a policy in its sentencing procedure there would be grave doubt as to the validity of the sentence. Cf. Woosley v. United States, 478 F.2d 139 (8th Cir. 1973). Each case requires individualized sentencing procedures; however, whether a defendant exercises his constitutional right to trial by jury to determine his guilt or innocence must have no bearing on the sentence. The record here does not sustain the claim.

Judgment affirmed.