author: ADAMS, Circuit Judge. GARTH, Circuit Judge

text:
    TRACY LEIGH DEVELOPMENT CORPORATION, Appellant, v. GOVERNMENT OF the VIRGIN ISLANDS, Appellee.
    No. 73-2081.
    United States Court of Appeals, Third Circuit.
    Argued April 25, 1974.
    Decided June 25, 1974.

      Charles S. Waggoner, II, Charlotte Amalie, St. Thomas, V. I., for appellant.
    Verne A. Hodge, Atty. Gen. of the Virgin Islands, Gordon S. Gilman, Asst. Atty. Gen., Charlotte Amalie, St. Thomas, V. I., for appellee; John A. Zebedee, Charlotte Amalie, St. Thomas, V. I., of counsel.
    Before ALDISERT, ADAMS and GARTH, Circuit Judges.
   OPINION OF THE COURT

ADAMS, Circuit Judge.

Resolution of this case turns primarily on the willingness or power of this Court to correct an alleged “drafting oversight” by the Virgin Islands legislature in enacting a statute that conferred certain specified categories of tax relief.

The appellant, Tracy Leigh Development Corp. (“Tracy Leigh”), contends vigorously that it is our province, and indeed our duty, to supply a term to the Virgin Islands Code which, it is asserted, the draftsmen unintentionally omitted. Standing in sharp counterpoint to this contention are doctrines of judicial temperance, doctrines which take on a heightened significance when the elemental relationship of , courts to legislatures is put in issue.

I.

The facts of the case have been stipulated by the parties. Tracy Leigh was incorporated under the laws of the Virgin Islands on February 24, 1967. On June 23, 1967, Tracy Leigh purchased about four acres of land on St. Thomas, for approximately $130,000. On October 26, 1967, the corporation applied for a grant of “tax or fee exemptions and subsidies” under the Virgin Islands Industrial Incentive Act. A public hearing on the application was held on December 14, 1967, and an executive committee of the Industrial Incentive Board approved the application on February 11, 1969. The grant was made effective from October 26, 1967, the date of the application, for a period of ten years. Subsequently, in 1970, the Government of the Virgin Islands refused to pay Tracy Leigh the subsidies provided for in the grant, declined to recognize any of the tax exemptions conferred by the grant, and filed a lien against Tracy Leigh for taxes owed. The Government’s failure to comply with the terms of the grant reflected a recommendation by the Comptroller of the Virgin Islands to the Governor that “no subsidy payments be made under this grant” and “that any taxes or fees exempted under this grant be billed and collected, and that the grant be voided.”

Under protest Tracy Leigh paid the asserted tax deficiency, and then brought this lawsuit in the district court. It sought a declaration of the validity of the exemption and subsidy grant, a payment of the subsidies, and a refund of the taxes it had paid under protest.

In defending the suit, the Government asserted that the tax exemption and subsidy grant exceeded the terms of the authorizing statute. The district court declared the grant void as not supported by the terms of the statute, and Tracy Leigh has appealed.

II.

The Virgin Islands Industrial Incentive Act was enacted by the Islands’ legislature “to promote the economic development of the Virgin Islands by the offering of certain incentives to the establishment or expansion of industries or businesses.” The Incentive program was repealed in July of 1972. As of September 25, 1967, the Act provided in part as follows:

“A person, firm, or corporation engaged in or about to engage in an industrial or business activity in the Virgin Islands, which industrial or business activity in the judgment of the Governor of the Virgin Islands, will promote the public interest by economic development of the Virgin Islands, may apply for the [tax exemption and subsidy] if such person, firm, or corporation meets the following requirements:
(3) undertakes to invest in an industry or business in the Virgin Islands. .
(B) at least $75,000 in the establishment of a business engaged in the ownership of housing projects . . . , factories, industrial plants, or commercial warehouses, industrial parks, condominium(s) . . . , including the actual construction of such housing projects, factories, industrial plants or commercial warehouses, industrial parks when such construction is engaged in by the owner.” (Emphasis added)

It is conceded by the parties that Tracy Leigh was engaged in the “construction” of condominiums. Indeed, the tax exemption and subsidy form reflects that the award to Tracy Leigh was predicated on the corporations’s intended “construction and sale to first buyer of condominium units.” The Government, in seeking to justify the voiding of the grant, points out what is plain: that in authorizing grants to those engaged solely in “construction,” the legislature did not include condominiums among the facilities for which construction grants could be given. Tracy Leigh, the Government urges, was thus not entitled to any grant for the construction of condominiums and, since condominium construction was the precise and express basis for Tracy Leigh’s tax exemption and subsidy, the grant was void ab ini-tio.

Tracy Leigh’s central contention is that the failure of the legislature to include condominium construction among those activities for which exemptions and subsidies might validly be granted, was an “obvious drafting oversight.” In support of this contention we are pointed to an earlier version of the authorizing statute, enacted a few months prior to the amendment of September 25, 1967. The earlier statute, after listing condominiums among the facilities for which “ownership” grants could be given, further authorized grants for “construction or operation of the same.” This terminology, beyond doubt, meant that exemptions and subsidies could validly issue under the earlier version of the Act for the construction of condominiums.

However, in the September 25th amendment the legislature did not use the phrase “the same”. Instead, the legislature undertook a specific enumeration of all those types of facilities for which construction grants were authorized. This enumeration tracked the listing of valid ownership grants, with the single exception of condominiums. Tracy Leigh maintains that, when read against the earlier enactment, the omission from the September 25th amendment of an authorization of grants for construction of condominiums was clearly an unintended omission — an “oversight”- — by the legislature. We are asked to rectify that oversight by supplying the missing term, and so uphold the validity of Tracy Leigh’s grant.

This we decline to do. We take it as a tenet of our jurisprudence that “[a] judge must not rewrite a statute, neither to enlarge nor to contract it.” At base, this adage is expressive of the fundamental separation in our system between the judiciary and the legislature. Where a statute is on its face clear, strict, literal interpretation renders a federal court functus officio. Departure from the plain import of statutory terms is justified only where terminological ambiguity is apparent, where inherent contradiction exists, or, perhaps, where the legislative history conclusively establishes that an oversight in draftsmanship has clearly occurred. None of these situations obtains here. Despite Tracy Leigh’s assertion that the legislature fully intended to authorize grants for the construction of condominiums, not a single fragment of legislative history — except perhaps the above-mentioned predecessor of the applicable statutory section — has been brought to our attention indicating that the legislature intended to authorize grants for the construction of condominiums.

Indeed, we hesitate to adopt Tracy Leigh’s characterization of the omission from the statute of condominium construction grants, as “obvious”. For reasons that may have been perfectly rational, the legislature may have intended precisely what Tracy maintains was unintended. Under the Incentive Act, “condominium” was a statutory term, of art. It meant “the ownership of single units in a multi-unit building with common elements.” Inasmuch as the legislature promulgated an express definition of “condominium”, we think it somewhat unlikely that the lawmakers would simply neglect to include that term in the grant authorization section of the same Act. At any rate, the reason for the omission of the term “condominium” in the grant section of the Act is considerably less clear than Tracy Leigh would have us conclude.

Additional considerations militate against judicial insertion of an allegedly “missing” word into this section of the Act. As Judge Maris has pointed out:

“It is a well settled rule that statutory exemptions from taxation, being a matter of grace, are to be strictly and narrowly construed.”

This rule, when compounded with the precept that “to supply [statutory] omissions transcends the judicial function,” makes the present case — a case involving a tax exemption — a particularly inappropriate occasion for judicial tampering with the clear language of a statute. Thus, we conclude that the grant to Tracy Leigh was ultra, vires the statutory authorization, and therefore invalid.

Tracy Leigh mounts a second argument against the district court’s judgment. It maintains that, in reliance upon the Government’s initial approval of the grant, Tracy Leigh “changed its position” and “gambled on building and selling the first condominiums constructed in the Virgin Islands.” Notwithstanding that this is part of a stipulation, we think it of limited significance. First, it is conceded that Tracy Leigh bought the land for the condominiums in question well before the approval of the tax exemption and subsidy. The purchase involved a substantial risk; this risk cannot be deemed to have been undertaken in “reliance” on a grant that had not yet been made. Moreover, another brace of venerated principles dictate that:

“. . . [Contracts with agents of the Government must be in strict conformity with the [statutory] authority conferred .... The Government is neither bound nor estopped by acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit.”

Thus, even were we of the opinion that, under some circumstances, Tracy Leigh’s “reliance” on the grant might have been significant, it cannot overcome, the fact that the grant was not authorized under Virgin Islands law. The district court was therefore entirely justified in refusing to enforce the terms of the grant.

It may be argued that the general objective of the Industrial Incentive program might have been furthered somewhat by judicial enforcement of the grant to Tracy Leigh. Nonetheless, we are always loathe to substitute our own notions of how best to administer a legislative program, when the legislature itself has set out the guidelines. The general inhibition against the “rewriting” of statutes is reinforced here by the fact that a tax-exemption statute is involved. In these circumstances, strict adherence to the literal terms of the statute would appear to be the appropriate course.

There is some suggestion by Tracy Leigh that, irrespective of our interpretation of the “construction” section of the Incentive Act, we should still deem Tracy Leigh’s tax exemption and subsidy grant to be valid and enforceable. This argument is grounded on the proposition that, before it could sell any of the condominium units it had planned to construct, Tracy Leigh would perforce own such units. Therefore, the contention goes, Tracy Leigh’s grant was technically authorized by the “ownership” provision of the Act. It is on this point that the dissent agrees with Tracy Leigh.

This final argument overlooks the fact that Tracy Leigh’s tax exemption and subsidy grant was explicitly tailored to reward only the “construction” of condominiums, an enterprise for which, as we have seen, the legislature did not authorize such grants. Moreover, the “ownership” section of the statute authorized grants to “business [es] engaged in the ownership of condominiums.” ' Even conceding the fact that at some point in time Tracy Leigh was technically an owner, it can hardly be said that the corporation was “engaged” in the “business” of owning condominiums. The language of Tracy Leigh’s grant reflected that the corporation intended to engage in the “construction and sale to first buyer of condominium units . . .,” not the continued ownership of such units. Moreover, we note that the statute, in authorizing certain construction grants, seeks to insure that such “construction is engaged in by the owner.”

Accordingly, the judgment of the district court will be affirmed.

GARTH, Circuit Judge

(concurring in part and dissenting in part).

I agree with the majority that Tracy Leigh is not entitled to subsidies arising from the actual construction of condominiums. I disagree with and hence dissent from the majority to the extent that its affirmance of the District Court judgment, precludes Tracy Leigh from “ownership” subsidies.

Act No. 2062 (33 V.I.C. § 4041(3) (B) ) provided for two separate categories eligible for tax subsidies or exemptions: (1) ownership, and (2) actual construction. Ownership applied to (1) housing projects, (2) factories, (3) industrial plants, (4) commercial warehouses, (5) industrial parks, and (6) condominiums (as defined in Chapter 33, Title 28, Virgin Islands Code) for the occupancy of others (emphasis supplied). Actual construction applied to (1) housing projects, (2) factories, (3) industrial plants, (4) commercial warehouses, and (5) industrial parks.

The subsidies pertinent to “ownership” are real property taxes and fees (33 V.I.C. § 4061(a)(1), (3) ) and a percentage of income tax liability (33 V.I.C. § 4071(a)(2)). On the other hand, the subsidies relevant to construction activities are excise taxes on materials and equipment (33 V.I.C. § 4061(a)(2) ) and a percentage of import duties and taxes paid on imported materials used in construction (33 V.I.C. § 4071(a)(1) ). The relevant portions of these statutes- are reprinted in the margin below.

The majority opinion deals mainly with the issue of construction subsidies despite what is to me a very evident abandonment by Tracy Leigh of its claims to the excise taxes and import duty subsidies relevant to “construction”. As I understand the Complaint, Tracy Leigh presently claims subsidies for having, in the first instance, established a business (condominiums) in the Virgin Islands, and for having maintained ownership of the condominiums until it sold the first 42 units built.

The grant of tax exemption and subsidies reads in pertinent part:

“Whereas, on October 26, 1967, the Virgin Islands Industrial Incentive Board received from Tracy Leigh Development Corporation ... an application for tax exemption and subsidies pursuant to the Provisions of the Code, as aforesaid, covering THE Construction and Sale to First Buyer of Condominium Units at Estate Nazareth, St. Thomas, V. I., and,
Whereas, it has been determined that the required financial investment in the business or industry was completed by the applicant on February 11, 1969, and that the applicant otherwise qualifies under the provisions of this title, and will promote the public interest by economic development of the Virgin Islands; and,
* x -X- -X * *
Now, Therefore, Be It Decreed by the Governor of the Virgin Islands, that the Grantee, Tracy Leigh Development Corporation is hereby granted tax or fee exemption and subsidies, in the name of the Government of the Virgin Islands, in accordance with the provisions of the Code, as aforesaid covering The Construction and Sale to First Buyer of Condominium Units at Estate Nazareth, St. Thomas, V. I. the said grant being for a period of ten (10) years.”
•» * -x -x * -x-

While it is true that the grant does not refer in specific terms to “the establishment of a business,” nevertheless it is inconceivable to me that a grant for Construction and Sale does not have implied within it both the facts of ownership and the “establishment of a business.”

The government's position, taken at oral argument and in its brief, is that the “ownership” portion of the grant refers only to the owner of the condominium once the condominium has been purchased from Tracy Leigh. I cannot subscribe to such an argument, for it would mean that in order to qualify for such exemptions or subsidies, an individual purchaser would havfe had to expend at least $75,000 in the purchase of his condominium. In addition, he would have to be regarded as having “established a business” by his purchase, even though he was the resident and occupant of the condominium unit.

If we were to adopt the appellee’s argument and construe the statutes as both the appellee and the majority would apparently have us do, it would appear that: (1) the developer, Tracy Leigh, having established a business of condominiums for sale, could not obtain a subsidy; and (2) the individual who purchased the condominium for residence could not obtain a subsidy. The question is then presented: why specifically include in that portion of the statute referring to the “establishment of a business,” the term “condominium” and then advocate a construction of that statute making it impossible for any exemptions or subsidies to be afforded thereunder?

There can be no doubt but that Tracy Leigh was fully qualified under the statute and grant as an owner, and as a corporation engaged in the business of owning condominiums which it then sold. During the period when it owned such a business (which it had established and in which it had made the requisite capital investment), it is entitled to ownership subsidies and tax exemptions as granted and as claimed.

I would reverse the judgment of the District Court.

      . The original capital stock of Tracy Leigh was issued in exchange for the land. The land was valued at $130,000, and was described as “parcels Nos. 8-1-2 and 8-56-1, Estate Nazareth, No. 1 Red Hook Quarter, St. Thomas, Virgin Islands.”

      . 33 V.I.C. § 4001 et seq.

      . The grant was signed into effect by Governor Ralph M. Paiewonsky on February 11, 1969.

      . Under the Act, a grantee is entitled to exemption from real property taxes, excise taxes, and certain license fees. See 33 V.I. O. § 4061. However, Tracy Leigh seeks here only a refund of real property taxes.

      . Stipulation No. 11. The letter containing the recommendation was sent to Governor Melvin H. Evans by the Comptroller, under date of April 2, 1970.

      . 33 V.I.C. § 4001.

      . Act No. 3263, § 4, Sess.L.1972, p. 220.

        . 33 Y.I.C. § 4041(3) (B).

      . District Court Exhibit 2, App. 7.

      . The amendment of September 25, 1967, was Act No. 2062. The language set out above (see text accompanying Note 8, supra) is as amended September 25, 1967. The earlier amendment was Act No. 2028, July 11, 1967.

      . Act No. 2028, July 11, 1967. (emphasis added)

      . Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527, 533 (1947).

      . Id.

      . Id.

      . Cf. Morton v. Delta Mining, Inc., 495 F.2d 38, at 41 (3d Cir., 1974) ; Schiaffo v. Helstoski, 492 F.2d 413, at 428 (3d Cir., 1974) ; PBW Stock Exchange, Inc. v. SEC, 485 F.2d 718, 739 (3d Cir.) (Adams, J., dissenting) ; Giuseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944) (L. Hand, J., concurring).

      . 28 V.I.C. § 901 (i). This statutory definition of “condominium” was incorporated by reference into the grant authorization section of the Incentive Act, by Act No. 2062, supra Note 10.

      . King Christian Enterprises, Inc. v. Government of Virgin Islands, 345 F.2d 633, 637 (3d Cir. 1965).

      . Iselin v. United States, 270 U.S. 245, 251, 46 S.Ct. 248, 250, 70 L.Ed. 566 (1926).

      . Stipulation No. 14.

      . To reiterate, the land was “purchased” for Tracy Leigh shares on June 23, 1967, and the grant was not approved until February 11, 1969.

      . In addition, the Government in its answer points out that Tracy Leigh had spent over a half-million dollars on the condominium project well before the grant was approved. This indicates, claims the Government, that “a definite decision to proceed with construction had been reached long before the date of application.”

      . In re Hooper’s Estate, 359 F.2d 569, 577 (3d Cir. 1966).

      . See Morton v. Delta Mining, Inc., supra, 495 F.2d at 43. Ordinarily, we might consider the Comptroller General’s interpretation of the Act to be entitled to great weight. Cf. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). However, since the Industrial Incentive Board apparently construed the Act in favor of Tracy Leigh, we do not invoke here the principle that courts should “[show] great deference to the interpretation given [a] statute by [those] charged with its administration.” Id.

      . See text accompanying Note 8, supra.

      . Tracy Leigh itself no longer claims such benefits. (Appellant’s Supplemental Brief p. 1). See also n. 4 Majority Opinion: ■ . However, Tracy Leigh seeks here only a refund of real property taxes.” As is pointed out in the text of this dissent, my reading of the complaint would indicate that Tracy Leigh seeks both a refund of real property taxes and a subsidy of percentage of income taxes for the particular years in question.

      . 33 V.I.C. § 4041(3) (B), as amended, provided :
      A person, firm, or corporation, engaged in or about to engage in an industrial or business activity in the Virgin Islands, which industrial or business activity, in the judgment of the Governor of the Virgin Islands will promote the public interest by economic development of the Virgin Islands, may apply for the same [tax exemption], if such person, firm, or corporation meets the following requirements :
      (3) undertakes to invest in an industry or business in the Virgin Islands
      (B) at least $75,000 in the establishment of a business engaged in the ownership of housing projects . . . factories, industrial plants, or commercial warehouses, industrial j)arks, condominium as defined in Chapter 33, Title 28 Virgin Islands Code for the occupancy of others, including the actual construction of such housing projects, factories, industrial plants or commercial warehouses, industrial parks when such construction is engaged in by the owner.
      This statute, operative at all times relevant to the instant case, has since been repealed.

      . 33 V.I.C. § 4061 provided, in part, that:
      (a) Each person, firm or corporation granted a certificate of tax exemption and subsidy benefits as hereinafter provided shall be exempt for a period of 10 years from the payment of the following taxes and fees:
      (1) All taxes on real property to the extent that the same is utilized in the industrial or business activity with respect to which a tax exemption certificate has been granted.
      (2) All excise taxes on building materials, tools, pipes, pumps, conveyor belts or other applicancos and materials necessary for use in the construction, alteration, reconstruction or extension of the physical plant, or any extension thereof.
      (3) All annual or specific license fees, except liquor license fees and automobile license fees; Provided, however, that in the case of a person, firm or corporation engaged in other industrial or business activity for which a certificate has not been granted, the full amount of all annual or specific license fees shall remain payable with respect to such nonexempt activity.
      33 V.I.C. § 4071 provided, in part, that:
      (a) In addition to the foregoing benefits a j)erson, firm or corporation granted a certificate of tax exemption and subsidy benefits as hereinafter provided shall be entitled for a period of 10 years to the following benefits, as determined in accordance with the provisions hereof:
      (1) A non-taxable subsidy equal to 90% of the amount (without deduction of administrative costs of collection) of import duties and other taxes paid into the Treasury of the Virgin Islands on raw materials brought into the Virgin Islands by such person, firm, or corporation for the purpose of producing or creating an article, goods or commodity as a result of industrial or manufacturing processing.
      (2) A non-taxable subsidy equal to 75% of the income tax liability paid to the Government of the Virgin Islands during the taxable year. ... In the computation of the non-taxable subsidy in the case of any person, firm or corporation under the provisions of this subparagraph, there shall not be considered as part of the base for such subsidy the taxes paid into the Treasury of the Virgin Islands on any income of such person, firm or corporation which is derived from sources within any of the states of the United States.
      ;¡: * :¡: * *
      These statutes, operative at all times relevant to the instant case, have since been repealed.


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Richard Steven SKELLEY, Defendant-Appellant.
    No. 73-1863.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 24, 1974.
    Decided June 7, 1974.
    As Amended June 19, 1974.
    Certiorari Denied Dec. 9, 1974.
    See 95 S.Ct. 629.

      Fred L. Hubbard, Danville, 111., for defendant-appellant.
    Henry A. Schwarz, U. S. Atty., E. St. Louis, 111., Warren White, Asst. U. S. Atty., Danville, 111., for plaintiff-appel-lee.
    Before KILEY, Senior Circuit Judge, CUMMINGS, Circuit Judge, and HOFFMAN, Senior District Judge.

       Senior District Judge Julius J. Hoffman of the Northern District of Illinois is sitting by designation.

   JULIUS J. HOFFMAN, Senior District Judge.

Defendant appeals from a judgment of conviction for unlawful possession of counterfeit obligations of the United States, 18 U.S.C. § 472. Finding no prejudicial error, we affirm.

Through his court-appointed counsel, defendant relies upon six asserted errors of the district court: (1) a 72-day delay between issuance of the federal warrant for defendant’s arrest and his subsequent arrest and arraignment, during which period he was jailed on a related state charge; (2) the admission into evidence of the counterfeit money, allegedly without a proper foundation that the bills were in the same condition — and of the same color — as when seized from defendant; (3) a claimed variance caused by the transposition of two digits in the serial numbers of the counterfeit bills; (4) allegedly prejudicial argument by the United States attorney inviting the jury, without a foundation in expert testimony, to appraise the probability of obtaining fingerprints from a leather wallet; (5) additional allegedly prejudicial argument by the prosecutor, urging the credibility of a witness' prior inconsistent statement which had been admitted to impeach his current testimony and not to prove the truth of the matter asserted; and (6) allegedly improper comment in the prosecutor’s summation upon defendant’s refusal to answer certain questions without consulting his attorney.

Delay in Arraignment. Defendant’s argument concerning the alleged delay in “arraignment” does not involve the familiar principle that a confession is. inadmissible if obtained during detention for an unreasonable period of time between the arrest and the prisoner’s appearance before a magistrate. See Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943) ; 18 U.S.C. § 3501 (1968). Here no confession was made.

Nor does the case present the question of what remedy, if any, beyond exclusion of confessions, might be appropriate for unreasonable federal detention prior to appearance before a magistrate, in violation of the command of Rule 5(a), Fed. R.Crim.Pro., directing the arresting officer to “take the arrested person without unnecessary delay” before a magistrate. The detention here was by the state, upon charges arising wholly under state law, for driving while under the influence of drugs, unlawful possession of drugs, and possession of hypodermic syringes. After hearing, the district judge found nothing to suggest that this imprisonment was in any way attributable to federal authority, through collusion or otherwise. See United States v. Romano, 482 F.2d 1183, 1190-1191 (5th Cir. 1973); United States v. Moriarty, 375 F.2d 901 (7th Cir. 1967), cert. denied 388 U.S. 911, 87 S.Ct. 2116, 18 L.Ed.2d 1350 (1967). The defendant would not have gained his liberty by being admitted to bail by a magistrate upon the federal charge, and the supposed delay did nothing to prolong his detention.

The arrest on state charges was made by state officers on January 21, 1973 (a Sunday), and defendant was arraigned the next day on those state charges before the Circuit Court of Effingham County, Illinois, and was detained for want of bail in the county jail. The counterfeit Federal Reserve notes found in defendant’s car were delivered to an agent of the United States Secret Service, who swore out a federal complaint on January 29, 1973. A warrant for defendant’s arrest on this charge was issued the same day, and a federal detain-er was lodged with the state officials. When defendant was released from state custody on April 11, 1973, upon dismissal or imminent dismissal of the state charges, he was immediately arrested on the outstanding federal warrant and taken before a federal magistrate who appointed counsel to represent him.

Nothing in this course of events violates either of the objectives of the prohibition against unreasonable delay between the arrest and the appearance before a magistrate. No confession was elicited during a period of coercive detention, and the detention itself was a result of pending state charges. Even if the detention were somehow attributable to the pendency of federal charges, on a supposition finding no support in the facts, defendant does not argue that he was thereby unlawfully deprived of his liberty in view of his inability to make bail, or that the necessary remedy for prolonged pre-hearing detention is dismissal of the substantive charge even though no prejudice appears. His argument is rather that he was prejudiced because the delay in arresting him under the federal warrant operated to delay the appointment of counsel to defend against the federal charge, and allowed the federal authorities to complete their investigation before defendant’s counsel could begin. In this interim, the federal officers obtained a statement, incriminating defendant, from one of his associates. ■

On analysis, defendant is complaining not about any delay between arrest and the magistrate appearance, but about delay in the arrest itself, which would have set the wheels in motion to provide him with defense counsel for the federal charge. A similar claim was rejected by the Supreme Court in United States v. Hoffa, 385 U.S. 293, 310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). There defendant complained that the federal authorities’ delay in arresting him impaired his right to counsel under the Fifth Amendment, since it permitted the officers to interrogate the defendant without the presence of his lawyer, and that the defendant's statements thus procured were inadmissible. The Court declared: “There is no constitutional right to be arrested. * * * Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.” 385 U.S. 310. For the same reasons, in this case the government had no duty to arrest defendant, and provide him with counsel, before continuing its investigation. See United States v. Palazzo, 488 F.2d 942, 948 (5th Cir. 1974) ; Koran v. United States, 469 F.2d 1071 (5th Cir. 1972). The fact that he was otherwise in custody did not curtail the investigatory power. “When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him.” Miranda v. Arizona, 384 U.S. 436, 477, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694 (1966).

Condition of the $20 Bills. In his second assignment of error, defendant claims that the twenty-seven counterfeit $20 bills were improperly admitted into evidence over his objection that no proper foundation had been laid in the absence of evidence that the bills were in substantially the same condition when offered as when they were first seized. Of course, when a tangible object is offered into evidence to prove its quality, character, or condition at the time of an earlier occurrence in issue, the article is relevant and competent only if its condition is substantially unchanged, so that its present condition fairly represents the past condition. See McCormick, Evidence, § 212 (2d ed. 1972); 7 Wigmore, Evidence § 2129 (3d ed. 1940). But changes in condition which “do not destroy the evidentiary value of the object” do not prevent its reception. Comment, Preconditions for Admission of Demonstrative Evidence, 61 NW.U.L.Rev. 472, 484 (1966). Here the $20 bills partook of the nature of written documents, since their written content was itself evidence of their counterfeit character: the fact that multiple bills bore identical serial numbers established their lack of genuineness. They were adequately identified by government witnesses as the bills found in defendant’s automobile. When a written document is properly identified as the same document previously examined, it is implicit in the identification that the content is the same, and nothing would .be added by a direct negative answer to the question where its written contents have been altered or changed.

Apart from their written content, defendant asserts that the bills when offered were blue in color, unlike genuine green currency, and argues that the jury might have considered this peculiar color as evidence that the defendant must have known that the bills were not genuine, and thus had the requisite guilty knowledge to make his possession a crime. For this purpose, he urges, the evidence was improper and prejudicial in the absence of a foundation showing that the bills were the same color as when they were seized. While a possible change in color would affect the probative value of the bills on this issue of intent, no change in color could destroy the relevance of the bills to show their counterfeit character from the identity of serial numbers, and their competence as evidence for this purpose is unimpaired by the unexcluded possibility of a change in color. In such a situation, when offered evidence bears on two issues, and a proper foundation has been laid as to one of those issues, the evidence is admissible over a general objection. See McCormick, Evidence, § 59 (2d ed. 1972). Here the evidence disclosed that the bills had been subjected to tests and analysis in the process of examining them for fingerprints. Upon appropriate and specific request, the trial judge might have given the jury a cautionary and limiting instruction to forestall any prejudicial inference that the color of the bills remained unchanged through these tests. No such request was made, and the general objection that no proper foundation had been laid was correctly overruled.

Variance in Serial Numbers. Over defendant’s objection, twenty-seven counterfeit $20 Federal Reserve notes were admitted into evidence. Except for serial numbers, the bills were identical. All purported to be notes drawn on the Federal Reserve Bank of Philadelphia, Series of 1969, Check Letter H., Face Plate No. 88, and Back Plate No. 120. Ten fictitious serial numbers were also identical except that two digits were transposed, so that some of the bills bore No. C20309642A while the remainder were numbered C 203 06942A. The indictment alleged that twenty-five of the bills bore the first number, and two the second. When they were offered into evidence, however, it appeared that the indictment’s description was erroneous, reversing the quantities. Actually, twenty-five of the bills bore the serial number alleged to be the number appearing on the group of two, and only two contained the serial number described in the indictment as the number on the group of twenty-five. Upon defendant’s objection to this variance, the district court granted the government’s motion to strike the serial numbers from the indictment, and the numbers were physically obliterated by interlineation. Defendant's objections were overruled.

At the outset, it is clear and conceded that there was no necessity to set forth the fictitious serial numbers in the indictment, and that the indictment would have been legally sufficient without this descriptive surplusage. It is enough that the indictment sets forth “a plain, concise and definite written statement of the essential facts constituting the offense charged”, Rule 7(c)(1), Fed.R.Crim.Pro., meeting “the requirement that the accused be informed of the charges against him, so that he can prepare his defense and so that he may be protected against a second prosecution for the same offense.” United States v. Cassell, 452 F.2d 533, 536 (7th Cir. 1971). “Setting out the counterfeit bills or describing them by their fictitious serial numbers or otherwise would have afforded no real protection against a second prosecution for the same offense, because the number of identical facsimiles which might possibly be printed are limitless.” Neville v. United States, 272 F.2d 414, 416 (5th Cir. 1959), cert. denied 362, 924, 80 S.Ct. 678, 4 L.Ed.2d 743 (1960).

In several early cases decided a ccntuvy ago, it was nonetheless held that if the indictment does set forth the serial numbers by way of description, they must be proved, although surplusage, according to the letter of the charge. See United States v. Hall, 26 Fed.Cas.No.15,283 p. 82 (Cir.Ct.Dist.Col.1832); United States v. Mason, 26 Fed.Cas.No.15,736 p. 1192 (S.D.N.Y.1875). But see United States v. Howard, 26 Fed.Cas.No.15,403, p. 388 (C.C.Mass.1837) (Story, J.). This strict view was explained as merely an application of the prevailing rules against variance between pleading and proof, derived by analogy from the rules applicable in civil proceedings. United States v. Hardyman, 38 U.S. 176, 179, 10 L.Ed. 113 (1839). Today, such a requirement “may well be classed with what the late Justice Holmes designated as ‘technicalities that were deemed vital a hundred or perhaps even fifty years ago.’ ” Simon v. United States, 78 F.2d 454, 455 (6th Cir. 1935). There the Sixth Circuit found no material or fatal variance when the indictment described the counterfeit bill as bearing Face Plate No. 1245 and the number on the bill offered into evidence was 1-245. In Heisler v. United States, 394 F.2d 692 (9th Cir. 1968), the Ninth Circuit concluded the variance was not fatal in a bench trial when the indictment described the counterfeit note as a $20 bill and the evidence showed it to be a $10 bill. And in United States v. Taylor, 464 F.2d 240, 241-242 (2d Cir. 1972), the Second Circuit relegated to a footnote its rejection of the claim of variance when the indictment described the counterfeit bills as Treasury notes when the proof revealed them to be Federal Reserve notes. See also United States v. Cassell, 452 F.2d 533, 536 (7th Cir. 1971) (no variance when no proof was offered to show stolen Treasury checks were “genuine” as alleged in indictment). Cf. Graffi v. United States, 22 F.2d 593 (7th Cir. 1927).

Thus the deletion of the serial numbers did not impair the sufficiency of the indictment, and the clerical discrepancy between pleading and proof of the serial numbers did not amount to a fatal variance. Although the numbers were surplusage, unnecessary to plead or prove, defendant argues that it was error to implement these conclusions by the physical act of deleting the serial numbers from the indictment, marking them out. The argument builds upon the base of the constitutional guarantee of indictment by grand jury, as declared by the Fifth Amendment. To allow the prosecutor and court to amend the indictment, to change the nature or character of the crime charged by the grand jury, would be inconsistent with this guarantee. Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). Extending the rule, courts have held that an indictment cannot be amended even with the consent of the defendant. See, e. g. Carney v. United States, 163 F.2d 784 (9th Cir. 1947), cert. denied, 332 U.S. 824, 68 S.Ct. 165, 92 L.Ed. 400 (1948). In deference to this principle, the Federal Rules of Criminal Procedure, while generally authorizing amendment of an information (Rule 7(c) ), provide only that “on motion of the defendant” the court may “strike surplusage from the indictment.” Rule 7(d). The absence of specific authority for deletion of surplusage without defendant’s consent has not been construed, however, to forbid the judge from instructing the jury to disregard descriptive surplusage in the indictment which varies from the proof when the written indictment itself remains untouched. United States v. Edwards, 465 F.2d 943, 950 (9th Cir. 1972). Nor does the rule prohibit correction of obvious clerical or typographical errors in the indictment, to change the initial letter of defendant’s patronymic from K (Kenny) to D (Denny). United States v. Denny, 165 F.2d 668 (7th Cir. 1947), cert. denied 333 U.S. 844, 68 S.Ct. 662, 92 L.Ed. 1127 (1948).

While the exceptions do not completely engulf the rule, we are not prepared to make a fetish of the prohibition against amendment of an indictment by holding that it is reversible error to interlinéate fictitious serial numbers which are inaccurate solely because of the transposition of two digits in a ten digit string, which could have been omitted entirely from the indictment with no consequence, which need not be proved even if alleged, which the jury could have been instructed to ignore, which might have been corrected as typographical errors, which correctly describe some of the bills in evidence, and which are incorrect only with respect to whether the quantity of bills bearing one number or the other is twenty-five or two. Neither the nature nor the gravity of the offense is affected by the discrepancy. Under the circumstances, any technical error that might have been committed by touching pen to paper to alter the indictment itself, is wholly without substance, and could .not have prejudiced defendant’s rights. In United States v. Buble, 440 F.2d 405 (9th Cir. 1971), the trial court had not merely stricken inaccurate numbers from the indictment, but had permitted the substitution of different numbers, to correct an obvious error in the dates on which allegedly false tax returns had been filed. The Ninth Circuit found no prejudicial error, observing that the “indictment did not require amendments, so amendments did not prejudice the defendant. The variance in the proof from the original indictment still could have permitted the case to go to the jury.” 440 F.2d 406.

Prejudicial Argument. The remaining three grounds of asserted error all involve claims that the Assistant United States Attorney exceeded the bounds of propriety in his argument in summation. The first of these three arguments was provoked by defense counsel’s own argument to the jury, suggesting that a reasonable doubt was raised by the government’s admitted failure to examine for fingerprints the wallet containing the counterfeit bills. In response, the prosecutor sought to justify this failure to make a fingerprint examination by asserting that certain substances do not readily carry fingerprints, and by exhibiting the wallet to the jury as an invitation to the jurors to find, without the aid of expert testimony, that touching its leather surface would not leave fingerprints. Defendant immediately objected that the argument was outside the testimony, and now asserts that the error was not cured by the judge’s instruction to the jury that the attorneys’ remarks are not evidence in the case.

Through inference, the defense asked the jury to conclude that the government could have found defendant’s fingerprints on the wallet if he had handled it, without a basis in expert testimony that the billfold’s surface would carry such prints. The Assistant United State’s Attorney responded in kind, asking the jury to draw the contrary inference. This Court has afforded some latitude to government counsel in replying to arguments advanced by the defense. In United States v. Achilli, 234 F.2d 797 (7th Cir. 1956), affirmed, 353 U.S. 373, 77 S.Ct. 995, 1 L.Ed.2d 918 (1957), as in this case, “Each party was arguing for an inference not supported by the record,” (234 F.2d 802), and the opinion permits the government in argument “to make reply to that made by opposing counsel, and, in doing so, statements may be made which otherwise would be improper.” 234 F.2d 802. See Lawn v. United States, 355 U.S. 339, 359-360 N.15, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958), United States v. Lawler, 413 F.2d 622, 628 (7th Cir. 1969.) Under these principles, state courts have found no prejudicial error when the defense argues innocence based on the absence of fingerprints, and the prosecutor departs somewhat from the record by way of reply, to explain away their absence. See, for example, State v. Coleman, 441 S.W.2d 46, 54 (Mo.Sup.Ct.1969); State v. Varga, 66 Nev. 102, 117-120, 205 P.2d 803, 810-811 (1949). Under the trial court’s instruction to the jury that the arguments of counsel do not constitute evidence, we are unable to conclude that defendant was prejudiced by this line of argument.

This limited tolerance of retaliatory argument also applies to defendant’s second claimed error in the government’s summation to the jury. The argument complained of was directed to a prior inconsistent statement which had been received in evidence solely for the purpose, as the jury was instructed, to impeach the in-court testimony of defendant’s acquaintance which tended to exculpate defendant. In his closing argument counsel for defendant had urged the credibility of the witness’ live testimony, and had argued that the prior inconsistent statement should be disregarded as self-serving. In reply, the government attorney argued that the prior statement was not self-serving, as the jurors would see upon reading it in the jury room, and that it established that the witness had lied in his testimony on the stand. Defendant submits that the prosecutor thus improperly argued that the prior statement was true, and that the jury could consider it as affirmative evidence of the facts it contained.

The orthodox view, relied on by defendant, has been much criticized for its “theoretical and artificial nicety” in the distinction between permitted use of the statement to show that the witness lied in his oral testimony, and its prohibited use as evidence of the truth of the statement’s contents. See 3A Wig-more, Evidence § 1018, p. 1007 (Chadbourn rev. 1970); United States v. DeSisto, 329 F.2d 929, 933 (2d Cir. 1964), cert. denied 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964). The artificiality of this fine line is exemplified by the prosecutor’s dilemma in this case. Defense counsel had argued that the prior statement should be disregarded as incredible because of the witness’ incentive to falsify at that time, and that the statement thus did not impair the credibility of the in-court testimony. To rebut the argument required the government attorney to argue in return that the witness had an equal incentive to tell the truth when giving the statement as when testifying on the stand. He thus attempted to shore up the credibility of the prior statement. It is unnecessary to decide whether he stepped over the line, supporting the credibility of the prior statement not merely to .the degree necessary to destroy the in-court testimony, but to the extent of leading the jury to treat the statement as affirmative evidence. Defendant made no objection to the argument until the jury had returned its verdict, when he raised the point in his post-trial motion. Upon a timely objection, the trial court could have emphasized by repetition its instruction to the jury that the prior statement could be considered only for purposes of impeachment. If it could be said that any unwaived error remained, any impropriety in the argument must be viewed as harmless and technical, in view of the Supreme Court’s proposed Federal Rules of Evidence 801(d)(1), which would make such prior inconsistent statements fully admissible as evidence of the truth of the facts contained.

Defendant’s final attack on the Assistant United States Attorney’s closing argument to the jury involves his reference to defendant’s refusal during in-custody interrogation, to answer certain questions, after answering others, without advice of counsel. The evidence referred to was directly elicited by defendant’s own attorney, in cross-examining the FBI agent who had conducted the interview. In response to the question whether defendant ever stated that he wanted an attorney present, the agent answered that when the questioning touched on the details of the “credit card and the things that [were] found in his possession, at that point he stated he would not like to make any further admissions without asking his attorney.”

In his summation, counsel for the government acknowledged that it would have been unfair for him to bring out the fact that defendant had so declined, but stated that defendant had brought it up, and restated the substance of the response: “ . . . once they started talking, about counterfeit he wanted to see his attorney.”

Defendant submits that this comment on the exercise of his constitutional right to counsel operated to penalize him for availing himself of the protected privilege, and was prohibited by analogy to Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), forbidding comment on a defendant’s refusal to take the stand.

Defendant made no objection to his comment at the time it was offered, however, nor did he mention the matter in his post-trial motion. Since the alleged error was raised for the first time in appeal to this Court, defendant is remitted to the “plain error” standard of Rule 52(b) in seeking reversal on this ground.

When interrogated while in custody, he had voluntarily waived his absolute right to refuse to answer any questions until he consulted a lawyer. His refusal to answer certain questions was disclosed to the jury by his own counsel’s questioning, pursuing what was apparently a deliberate defense strategy to cast doubt on the voluntariness of the responses already given. No objection was raised at any state of the trial court proceedings. In the light of these repeated waivers, there is no justification for the invocation of our extraordinary power to reverse on the ground of plain error when the argument complained of did little more than repeat the substance of the evidence which defendant had intentionally adduced. Like an indirect comment on defendant’s refusal to take the stand, the unwise comment here does not rise to the dignity of plain error, to require reversal when not brought to the attention of the trial court. See United States v. Lawler, 413 F.2d 622, 628 (7th Cir. 1969); Baker v. United States, 115 F.2d 533, 543-544 (8th Cir. 1940). See also United States v. Chamley, 376 F.2d 57, 60-61 (7th Cir. 1967). The Third Circuit’s decision in United States ex rel. Macon v. Yeager, 476 F.2d 613 (3d Cir. 1973), is not to the contrary. There the prosecutor vigorously urged as evidence of guilt the fact that defendant had visited his lawyer’s office the day after a street altercation, for which he was later arrested. Here the Assistant United States Attorney merely responded, perhaps over-zealously, to matters which defense counsel had chosen to put before the jury in a different light.

Affirmed.

      . In the district court, defendant had moved to suppress all the evidence, including the counterfeit bills, obtained in a search of his automobile after his arrest. While driving in the wrong lane, defendant had been stopped by a state highway patrolman. He consented, both orally and by signing a written consent form, to the search of his car which produced certain drug paraphernalia as well as the counterfeit $20 Federal Reserve notes admitted into evidence. The district court denied this motion to suppress, rejecting defendant’s claim that his consent was given while he was under the influence of drugs and was thus vitiated, and that without consent the search was unreasonable and unlawful. In argument to this Court, defendant has not pressed the claim that denial of this motion was error. In any event, the factual .showing at the hearing below was insufficient to invalidate his consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

      . We understand defendant’s use of the term “arraignment” to refer not to an appearance for the purpose of pleading to an indictment or information, as defined in Rule 10, Fed.R.Crim.Pro., but rather to the appearance before the magistrate, not for purposes of a plea, but to advise defendant of the complaint against him, of his right to counsel, and of his right to a preliminary examination, and to fix the conditions of bail, all as provided in Rule 5 (c), Fed.R.Crim.Pro.

      . Defendant raised the same objection to the admission into evidence of the wallet in which the counterfeit bills were found, and of the consent-to-search form which he signed, asserting as to both that no adequate foundation was laid without evidence that they were still in their original condition. Both were fully identified. As to the wallet, defendant offers no suggestion of any change in condition which might have affected its limited relevancy. As to the written consent, the authentication was sufficient to support admission. Accordingly, we find no error in the admission of either item.

      . Since the counterfeit bills were found in the wallet with the credit card, it was within the limits of permissible inference in argument to assume, as the prosecutor did, that the “credit card and the things” in defendant’s possession included the counterfeit bills within its reference. “During his closing argument, an advocate is permitted to make any. comments which are supported by the evidence of record in the case.” United States v. Guajardo-Melendez, 401 F.2d 35, 39—40 (7th Cir. 1968), See also United States v. Balistrieri, 403 F.2d 472, 480-481 (7th Cir. 1968).


author: WINTER, Circuit Judge.

text:
    LOCAL 391, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioners, v. Hiram H. WARD, United States District Judge for the Middle District of North Carolina, Winston-Salem Division, Respondents.
    No. 74-1593.
    United States Court of Appeals, Fourth Circuit.
    May 21, 1974.

      David Previant, Milwaukee, Wis., Hugh J. Beins, Washington, D. C., for petitioners.
    J. W. Alexander, Jr., Charlotte, N. C., for respondent.
    Before WINTER, RUSSELL and WIDENER, Circuit Judges.
   MEMORANDUM AND ORDER

WINTER, Circuit Judge.

From the above-entitled petition for mandamus, supplement to petition for writ of mandamus, exhibits annexed to both, filed by Local 391, etc. (the Unions), and the oral response of counsel for Pilot Freight Carriers, Inc. (Pilot) at the hearing before the undersigned on May 20, 1974, it appears as follows:

In Nos. 74-1454 and 74-8036, Pilot Freight Carriers, Inc. v. International Brotherhood, etc., et al., 4 Cir., 497 F.2d 311, we affirmed in part and modified in part a preliminary injunction in a labor dispute. We thought the injunction as modified was proper under the limited exception, created by the decision in Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), to the bar of the Norris-LaGuardia Act, 29 U.S.C. § 101 et seq., to such injunctions. We concluded that there was an arbitrable question, between the no-strike clause of the master labor agreement and the clause giving union members the right to refuse to cross a primary picket line, as to whether the Unions had the right under the agreement to advise their members of their right to honor such a picket line, and to provide financial support to members exercising that right. Although we sustained the injunction as modified, we directed the district court to consider whether it should be continued during the pending arbitration.

Following remand, Pilot moved for a rule directed to the Unions to show cause why they should not be held in contempt for violation of the injunction. The Unions moved to dissolve the injunction on the ground that final arbitration had been had under each of the contracts. Specifically, the Unions allege that, with respect to the so-called road and city contracts, the National Grievance Committee has determined that Article 9 prevails over conflicting articles and the Unions may advise members of their right to refuse to cross a primary picket line established by Local 512 and may provide financial assistance to members observing authorized primary picket lines. With respect to office workers, the Bi-State Grievance Committee — the arbitration body of last resort — determined that while concerted action on the part of a local union is a violation of Article 10, Local 391 did not participate in concerted action in violation of Article 10. With respect to maintenance workers, the Bi-State Committee — the arbitration body of last resort — decided “deadlocked,” the contract provided no further avenue of arbitration, and each party had the right to pursue its own remedies.

When Pilot’s and the Unions’ motions came on for scheduling on May 14, respondent orally ruled that he would consider Pilot’s motion first and he would not consider Unions’ motions to dissolve unless or until Unions were found not in contempt, or, if found in contempt, their contempt was purged. The effect of the ruling may be to continue for an indefinite period a hearing on and decision of Unions’ motions and, thus, to continue for an indefinite period the temporary injunction theretofore granted.

We think that the Unions have alleged a colorable claim to dissolution of the injunction. If the factual basis on which the Boys Markets exception was predicated has ceased to exist, i. e., that all possible arbitration has been exhausted and it has not béen determined that the conduct of the Unions violates the several labor contracts, the injunction should be dissolved forthwith. This is so because of the strong, clear and explicit Congressional policy embodied in § 104 of the Norris-LaGuardia Act, prohibiting, inter alia, injunctions to restrain the payment of strike or unemployment benefits or insurance, or giving advice or notifying persons to cease or refuse to perform work. It is true also because our previous mandate implicitly decides that the injunction should be continued only as long as arbitration was pending and not concluded with respect to the issues we identified as arbitrable. Whatever may be the general discretion of a district judge to withhold consideration of a motion to dissolve an injunction until he has determined whether the person enjoined should be held in contempt for failure to obey the injunction, Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215 (1897), we have no doubt that in the context of a labor injunction in a federal court the district judge, in accordance with the policy of the Act, is obliged to hear and decide the motion to dissolve as a first order of business, except in those rare instances when both motions can be heard simultaneously or seriatim in a matter of hours and immediately decided. Here, we do not -decide that the motions to dissolve must be granted. Although the Unions have presented a colorable case for dissolution, Pilot contests whether there has been final arbitration in favor of the Unions. We do decide that on the facts as alleged, the district judge should hear and decide the Unions’ motions before adjudicating whether the Unions should be held in contempt. Even if the district court dissolves the injunction, we do not think that such action would limit its subsequent authority to decide if the Unions were in contempt prior to dissolution.

We think this is an appropriate case in which to issue a writ of mandamus to carry out the views set forth above. This is not a case like Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); and LaBuy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957); where mandamus under the supervisory authority of a court of appeals, to correct persistent,- improper practices on the part of a district court, was recognized or applied. But the Unions have no present remedy to obtain appellate review of respondent’s ruling to defer consideration of their motions to dissolve, and counsel are unable to suggest how the Unions would have any such future remedy. In the event that the issuance or denial of an injunction is appealed, we are required to hear and decide the matter with “the greatest possible expedition . . . ” 29 U.S.C. § 110. We think that the district court should act with like dispatch, including a non-frivolous motion to dissolve an injunction theretofore granted. Otherwise, if the motions are well grounded and their decision delayed, an injunction against protected activities in a labor dispute in violation of the Norris-LaGuardia Act will continue for an indefinite period. In accordance with our holding in Schwab v. Coleman, 145 F.2d 672 (4 Cir. 1944), we think that mandamus should issue to protect our appellate jurisdiction and to enable us to exercise it expeditiously. In this way, if the motions are well grounded, the policy of Congress to withhold “jurisdiction” to grant injunctions in labor disputes, which surely includes the policy to limit “jurisdiction” to continue injunctions, except in strict compliance with the Act, will be fully served. Additionally, mandamus will protect our prior mandate by insuring that its implicit holding will be carried out. United States v. United States District Court, 334 U.S. 258, 68 S.Ct. 1035, 92 L.Ed. 1351 (1948); Yablonski v. United Mine Workers of America, 147 U.S.App.D.C. 193, 454 F.2d 1036 (1971).

It is, therefore, with the concurrence of Judge Russell and Judge Widener, ordered

That leave to file the petition for mandamus be, and it is hereby granted; and

That a writ of mandamus directing respondent forthwith to hear and determine the Unions’ motions to dissolve the preliminary injunction heretofore granted, before respondent enters upon a determination of Pilot’s'motion to adjudge the Unions in contempt for failure to obey said injunction, shall issue.


author: WEBSTER, Circuit Judge.

text:
    WEIDINGER CHEVROLET, INC., Appellee, v. UNIVERSAL C.I.T. CREDIT CORPORATION, Appellant.
    No. 73-1681.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 12, 1974.
    Decided July 31, 1974.
    Rehearing and Rehearing En Banc Denied Aug. 21, 1974.

      John L. Hearne, Jefferson City, Mo., for ‘appellant.
    Claude T. Wood, Richland, Mo., for appellee.
    Before MEHAFFY, Chief Judge, and GIBSON and WEBSTER, Circuit Judges.
   WEBSTER, Circuit Judge.

This case presents for our review under the Uniform Commercial Code the scope and application of a security agreement granting a floor plan lender a broad security interest in the motor ve-hide inventory of an automobile dealer with multiple locations and sources of financing.

Jim Swanson, not a party to this litigation, was a used car dealer in Belle, Missouri. Commencing in 1964, he financed the purchase of his used car inventory through a floor plan arrangement with GMCO Agency, Inc. of Vienna, Missouri. Under the terms of the floor plan, Swanson delivered a note and title to each new car which he purchased, and GMCO issued him a check in the amount of the note. Ten per cent of the principal balance of the note was due in 90 days. Leonard Weidinger owned a one-third interest in GMCO and together with his wife owned all of the shares of Weidinger Chevrolet, Inc. Swanson had a side arrangement with Weidinger under which Swanson from time to time relieved his maturing obligations to GMCO by assigning used cars to Weidinger Chevrolet. Weidinger Chevrolet would then issue its note to GMCO in release of Swanson’s note. Cars which Weidinger Chevrolet acquired in this manner were frequently left on Swanson’s used car lot and were sold by him on a commission basis.

In 1968, Swanson acquired a Chrysler-Plymouth Agency at a different location. For the purpose of financing the new car agency, Swanson entered into an “Agreement for Wholesale Financing” with Universal C.I.T. Corporation (C.I.T.). C.I.T. knew that GMCO had a floor plan agreement with Swanson and did not intend to floor plan Swanson’s used cars. On March 21, 1968, C.I.T. filed a financing statement executed by Swanson in favor of C.I.T. as the secured party and specifically disclosing a security interest which covered, inter alia:

(i) The following types of inventory, both new and used: automobiles, buses, trucks, truck tractors; trailers and semi-trailers; mobile homes, farm tractors and other farm equipment; boats, boat motors and other marine products and equipment * * *; (ii) leases covering any of the foregoing; and (iii) accounts and contracts rights now or hereafter owing to the debtor.

In December, 1969, C.I.T. discovered that Swanson had sold a substantial number of new Chryslers and Plymouths “out of trust” — that is without having paid C.I.T. in accordance with the terms of the security agreement. C.I.T. promptly brought a replevin action under Missouri law asserting an immediate right to possession under its “Agreement for Wholesale Financing”. C.I.T. caused all of the cars thus seized to be sold, including 22 cars which had previously been assigned to Weidinger Chevrolet. Weidinger Chevrolet thereafter brought this suit to recover the value of the ears alleged to have been converted unlawfully by C.I.T. In a trial to the court without a jury, the District Judge found in favor of Wei-dinger Chevrolet and awarded actual damages of $34,290 and prejudgment interest of $7,200. It is from this judgment that C.I.T. appeals.

In an unpublished opinion and judgment, the District Judge intimated that by its course of dealing C.I.T. had waived its lien on the automobiles “by treating Swanson’s second hand car business as completely separate from the new car business which [C.I.T.] was financing.” He based his decision, however, upon the following clause which appears in the Agreement for Wholesale Financing:

You shall have all the rights of a secured party under the Uniform Commercial Code or at common law or in equity or under any other statute or under this agreement. Your rights and remedies hereunder shall be cumulative. It is agreed that new and used automobiles, trucks, are the subject of widely distributed standard price quotations and are customarily sold on and in a recognized market. A private sale of any chattel to a dealer in such types of chattels for the amount we originally paid for such chattel or at any lesser fair price is a commercially reasonable disposition thereof.

The District Judge construed this clause as an authorization to Swanson to make a reasonable disposition at a private sale of any of the cars secured by the agreement, free of any of its provisions. Since C.I.T. agreed that the 22 cars involved were worth far less than Weidin-ger Chevrolet had paid for them, the earlier sales of the cars by Swanson to Weidinger Chevrolet must have been a “commercially reasonable disposition”, and Weidinger Chevrolet therefore acquired title free of C.I.T.’s security interest.

In this appeal, C.I.T. contends that it had a valid security interest in Swanson’s used car inventory superior to Weidinger Chevrolet’s claimed interest and that it did not waive, nor was it es-topped from, asserting its interest. Further, C.I.T. contends that even if Weidinger Chevrolet acquired the cars in question from Swanson free of C.I.T.’s security interest, it resubjected the cars to the security interest by leaving the cars on Swanson’s lot for resale.

Jurisdiction was based upon diversity of citizenship between C.I.T., a citizen of Delaware, and Weidinger Chevrolet, a citizen of Missouri. We apply law of Missouri, which has adopted the Uniform Commercial Code.

Acquisition of Security Interest

The first question presented is whether C.I.T. acquired a perfected security interest in the used cars which were subsequently replevied and sold. It is undisputed that GMCO made no attempt to file or otherwise perfect its own security interest, and we are therefore not confronted with a question of priority of liens.

No attack is mounted upon the sufficiency of the security agreement and financing statement. Indeed the essential elements are fully set forth. The description of the inventory in the financing statement is more than adequate notice. Nor is it significant that the automobiles were located on a Swanson used ear lot rather than at the agency. It is only required that the financing statement reflect the signatures of the parties, give the address of the secured party from which information concerning the security interest may be obtained, give a mailing address of the debtor and contain a statement indicating the types, or describing the items, of collateral. V.A.M.S. § 400.9-402. Moreover, the security agreement itself refers to “All our inventory and equipment, wherever located . . . .”

Nothwithstanding the sufficiency of the security agreement, the District Judge found that language in the security agreement authorizing a commercially reasonable disposition of chattels constituted an express waiver by C. I.T. of its lien, provided the sale was a “commercially reasonable disposition”. In so holding, the District Judge read the “commercially reasonable disposition” clause entirely out of context and erroneously interpreted this provision. The clause grants to C.I.T. “all the rights of a secured party under the Uniform Commercial Code . . . . ” Section 9-504(1) of the Uniform Commercial Code authorizes the sale of collateral, in event of default, provided the disposition is “commercially reasonable”. The clause upon which the District Judge relied simply provided that a private sale of a chattel to a dealer in such types of chattels for the amount originally paid by Swanson for such chattel or at a lesser fair price would be a “commercially reasonable disposition thereof”. It obviously referred only to a disposition by C.I.T. in the event it exercised its right as a secured party to dispose of the collateral and thereby assured the debtor that a fair price would be obtained for the chattels used to reduce or satisfy the debt.

While the District Judge predicated his finding of waiver upon express language in the security agreement, he also indicated that he would be “inclined to find that by this course of dealing the defendant [C.I.T.] had waived its lien entirely by treating Swanson’s second hand car business as completely separate from the new car business which defendant was financing.” Since we reject the express waiver theory, we must deal briefly with the trial court’s alternative comment. The court found that C.I.T. had refused to finance the used cars, was aware that they were being financed elsewhere and made no effort to determine whether Swanson was selling the used cars in the “ordinary course of business”. While the Uniform Commercial Code does not preclude the application of principles of implied-in-law waiver or estoppel, such findings do not support a legal conclusion based upon either theory. See V.A.M.S. § 400.9-205. The security agreement extends to automobiles, whether or not financed by C.I. T. The court made no finding, nor do we perceive anything from the record from which the court could find that Weidinger Chevrolet relied upon the course of dealing between C.I.T. and Swanson to its detriment. Nor was there any evidence of any side agreements between the parties from which waiver may be inferred.

Sales to Weidinger Chevrolet

Having determined that C.I.T. acquired a valid security interest in the Swanson used cars, which was not waived by express agreement or course of conduct, we next consider the legal effect of the sales from time to time by Swanson to Weidinger Chevrolet for the purpose of reducing Swanson’s legal obligation to GMCO. The security agreement authorized Swanson “to exhibit and to sell each chattel only to buyers in the ordinary course of business”. C.I. T. was aware of sales by Swanson to Weidinger Chevrolet. There is no evidence that these sales were at less than arm’s length and no contention of fraud appears. The finding of the court that the prices paid for the automobiles were fair is not clearly erroneous. From this it follows that while C.I.T. possessed a valid security interest in all of the cars, the sales by Swanson to Weidinger Chevrolet of the 22 cars at issue here was in the ordinary course of business and hence Weidinger Chevrolet acquired title free of such security interest. V. A.M.S. § 400.9-307(1).

The Consignment

We next turn to a consideration of the consignment of the automobiles by Wei-dinger Chevrolet to Swanson. As previously noted, Weidinger frequently allowed cars which had been acquired from Swanson under the side arrangement to remain on the Swanson lots to be sold on commission by Swanson. Section 2-326 of the Uniform Commercial Code provides in part:

(1) Unless otherwise agreed, if delivered goods may be returned by the buyer even though they conform to the contract, the transaction is
* * -x- *
(b) a ‘sale or return’ if the goods are delivered primarily for resale.
(2) Except as provided in subsection (3), * * * goods held on sale or return are subject to such claims while in the buyer’s possession.
(3) Where goods are delivered to a person for sale and such person maintains a place of business at which he deals in goods of the kind involved, under a name other than the name of the person making delivery, then with respect to claims of creditors of the person conducting the business the goods are deemed to be on sale or return. The provisions of this subsection are applicable even though an agreement purports to reserve title to the person making delivery until payment or resale or uses such words as ‘on consignment’ or ‘on memorandum’. However, this subsection is not applicable if the person making delivery
(a) complies with an applicable law providing for a consignor’s interest or the like to be evidenced by a sign, or
(b) establishes that the person conducting the business is generally known by his creditors to be substantially engaged in selling the goods of others, dr
(c) complies with the filing provisions of the article on secured transactions (article 9).

In Mann v. Clark Oil & Refining Corp., 302 F.Supp. 1376 (E.D.Mo.1969), aff’d per curiam, 425 F.2d 737 (8th Cir. 1970), a trustee in bankruptcy sued defendant oil company to set aside certain preferential transfers by bankrupt to defendant. Of particular concern was the repossession of $630 worth of gasoline in bankrupt’s possession under a “consignment” contract with defendant. The court held that § 2-326 was applicable and therefore the only question was whether bankrupt’s business was conducted under the oil company’s name or his own. Finding the business was under bankrupt’s name, the court held that the gasoline was subject to the interest of general creditors. The court also held that the consignment agreement was actually a security agreement and, since not perfected under the Code, was subordinated to the interest of a creditor holding a judicial lien.

Weidinger Chevrolet neither posted signs nor complied with the filing provisions of Article 9 of the Uniform Commercial Code. Nor did plaintiff establish that Swanson was “generally known by his creditors to be substantially engaged in selling the goods of others.” Upon this record we hold that the 22 cars, although owned by Weidinger Chevrolet, were in the possession of Swanson under circumstances deemed to be a “sale or return”, and hence subject to the claims of Swanson’s creditors. C.I.T.’s previously perfected security interest reattached to such cars as inventory subject to such interest.

The Fuentes Defense

On this appeal, plaintiff contends that even if the court’s findings and decision were erroneous, the Missouri statute under which the automobiles were seized is unconstitutional and therefore plaintiff’s motion for summary judgment should have been sustained. This contention is without merit.

The Missouri replevin statute, V.A.M. S. chapter 533, is a possessory action. By following its procedure, C.I.T. was enabled to obtain possession of the automobiles without a pre-seizure hearing. Plaintiff contended in its motion for summary judgment that such seizure was in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States and in violation of Article I, Section 10 of the Missouri Constitution, V.A.M.S. See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). The Missouri Supreme Court, in State ex rel. Williams v. Berrey, 492 S.W.2d 731 (Mo.1973) (en banc), declined to hold chapter 533 facially unconstitutional. It did, however, hold that a seizure under the statute pendente lite must be preceded by a court hearing which will satisfy the requirements of Fuentes. Plaintiff cites other cases in which similar statutes have been held to be unconstitutional. McClellan v. Commercial Credit Corp., 350 F.Supp. 1013 (D.R.I.1972), aff’d sub nom., Georges v. McClellan, 409 U.S. 1120, 93 S.Ct. 935, 35 L.Ed.2d 253 (1973); Gunter v. Merchants Warren National Bank, 360 F.Supp. 1085 (D.Me.1973).

It would be inappropriate for us, upon this record, to pass upon the constitutionality of the Missouri replevin statute. Fuentes was a civil rights action in which damages were sought for breach of plaintiff’s civil rights. Berrey, supra, was a mandamus action in which the court ordered restoration of possession because of the defective order of possession in the ease below. Fuentes is here raised as a shield, rather than as a sword, and the defense comes too late. Had C.I.T. acquired possession of the automobiles through self-help, as they had a clear right to do under the security agreement and under the Uniform Commercial Code, plaintiff could not have complained. A flaw in the means of acquisition does not impair the validity of the security interest or C.I.T.’s right to dispose of the property as permitted by the security agreement, which vested C.I.T. with all of the rights of a secured party under the Uniform Commercial Code. See V.A.M.S. § 400.9-205. A proper challenge to the Missouri replevin statute, on constitutional grounds, should await a more appropriate vehicle, and we decline to pass upon it here.

Judgment reversed.

      . Honorable William Collinson, United States District Judge for the Eastern and Western Districts of Missouri.

      . V.A.M.S. Chapter 400. References to sections under this Chapter correspond to article and section numbers of the Uniform Commercial Code.

      . The Agreement for Wholesale Financing provides that in event of any breach of its terms by debtor, or of any act of bankruptcy, or if C.I.T. in good faith deems the indebtedness or the chattels unsecure:
      (3) You shall have a security interest in all our inventory and equipment, wherever located and whether or not financed hereunder, and you shall have the same rights with respect thereto, including removal, as you have as to chattels hereunder.

      . Quoted in text supra p. 462.

      . V.A.M.S. § 400.9-504 provides :
      (1) A secured party after default may sell, lease or otherwise dispose of any or all of the collateral in its then condition or following any commercially reasonable preparation or processing.
      (3) Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. . . .
      * * * * *

      . V.A.M.S. § 400.1-102; § 400.1-103.

      . V.A.M.S. § 400.1-201(9) provides:
      (9). ‘Buyer in ordiifary course of business’ means a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind but does not include a pawnbroker. ‘Buying’ may be for cash or by exchange of otiier property or on secured or unsecured credit and includes receiving goods or documents of title under a preexisting contract for sale but does not include a transfer in bulk or as security for or in total or partial satisfaction of a money debt.

      . C.I.T.’s reliance on Commercial Credit Corp. v. Joplin Automobile Auction Co., 430 S.W.2d 440 (Mo.App.1968) is misplaced. In
        that ease an auctioneer who had handled arm’s length sales in the past was held not to be a buyer in the ordinary course of business because it was only acting as an agent and also because the transfer was made to satisfy a debt to the auctioneer. Here, the transfer was in aid of liquidating a debt to a third party — GMCO, but was not “in total or partial satisfaction of a money debt” to the buyer, Weidinger Chevrolet.

      . Leonard Weidinger testified that Swanson would contact him with respect to a prospective customer for one of the cars acquired by Weidinger Chevrolet; Weidinger would set a price; Swanson would call back and direct how to make out the bill of sale; and, according to Weidinger, “lie would give me what I wanted, I don’t know what he got from the customer.” Sometimes Swanson paid GMCO the amount due on the car and settled the balance with Weidinger Chevrolet at a later time.

      . V.A.M.S. § 400.2-326.

      . See V.A.M.S. § 400.9-204(3). Professor Ray David Henson, discussing what is sometimes called the Mississippi River theory of inventory and accounts financing, writes:
      Within our terms of reference, ‘a security agreement may provide that collateral, whenever acquired, shall secure all obligations covered by the security agreement.’ This is in line with the pre-Code law of many states in various areas, and raises no significant problems. It is true that a security interest cannot attacli until the debtor lias rights in the collateral. Once the interest attaches, however, when the collateral is inventory (as inventory would normally be understood), it very clearly continues, although the quantity and possibly even the quality of the inventory may, as does Huck Finn’s river, undergo constant change.
      R. Henson, Secured Transactions Under The Uniform Commercial Code 132 (1973). (footnotes omitted)

      . V.A.M.S. § 400.9-503.

      . Nichols v. Tower Grove Bank, 497 F.2d 404 (8th Cir., 1974) ; Nowlin v. Professional Auto Sales, Inc. and Mayhugh v. Bill Allen Chevrolet Co., 496 F.2d 16 (8th Cir. 1974) ; see Bichel Optical Laboratories, Inc. v. Marquette National Bank of Minneapolis, 487 F.2d 906 (8th Cir. 1973).