author: SNEED, Circuit Judge:

text:
    UNITED STATES of America, Appellant, v. David CHUN et al., Appellees.
    No. 73-2972.
    United States Court of Appeals, Ninth Circuit.
    Aug. 30, 1974.

      Gregg H. Young (argued), Honolulu, Hawaii, Robert H. Plaxico, Appellate Section. Criminal Division, U. S. Dept, of Justice, Washington, D. C., for appellant.
    Joseph M. Gedan (argued), Honolulu, Hawaii, for appellee.
    Before DUNIWAY, CHOY and SNEED, Circuit Judges.

      . These standards were discussed by the President’s Commission on Law Enforcement and Administration of Justice as follows :
      Under the Fourth Amendment it has been traditionally thought that all searches must be on notice . . . [but] it is clear that unless |the wiretap] is surreptitious, it is useless.
      This objection possesses almost unanswerable logic and substance. Nevertheless, it does not seem to pose an insuperable barrier to a carefully drawn scheme of authorization. First, it is clear that all searches need not be conducted on prior notice. When no one is at t'. e place searched, notice comes to the party only through the inventory which must be left and filed with the court. Second, the constitution does permit an entry into a home for a lawful governmental purpose without prior notice of authority and purpose where giving such notice of authority and purpose would reasonably result in the destruction of evidence subject to seizure. There is no reason why some sort of inventory procedures applicable to electronic surveillance warrants could not be worked out. Warrant procedures prior to use of electronic equipment and inventory procedures subsequent to its use would help limit the indiscriminate use of the devices. More importantly, they would make possible prior and subsequent judicial review of their use and possible abuse.
      President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Organized Crime, Appendix C at 97 (1967) (hereinafter Task Force Report). See also Standards Relating to Electronic Surveillance, American Bar Association Projects on Standards for Criminal Justice, Approved Draft at 92 (1971) (hereinafter ABA Project, Approved Draft).

   OPINION

SNEED, Circuit Judge:

This appeal arises from an order to suppress tapes of certain intercepted wire communications which the government is attempting to use in prosecuting appellees for their alleged participation in a gambling enterprise prohibited by 18 U.S.C. § 1955. It involves a class of defendants whose interests appear to have been almost completely forgotten by the draftsmen of Title III of the Omnibus Crime Control and Safe Streets Act of 1968,18 U.S.C. §§ 2510-2520.

I.

STATEMENT OF THE CASE

On application of government attorneys, the interception of wire communications from various telephones was authorized by the United States District Court for the District of Hawaii pursuant to the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. These authorizations extended over a period of some two months until, on December 18, 1972, government surveillance of the telephones was discontinued. In conjunction with the same investigation, agents of the Federal Bureau of Investigation also executed approximately seventy-eight conventional search warrants. Probable cause for the issuance of these warrants had been satisfied on the basis of information disclosed during the course of the above-mentioned interceptions.

On January 11, 1973, the district judge who had authorized the interceptions met with a government attorney to determine the identity of those individuals who should be served with 18 U.S.C. § 2518(8)(d) inventory notice. This subparagraph, upon which the present appeal rests, provides as follows:

(d) Within a reasonable time but not later than ninety days after the filing of an application for an order of approval under section 2518(7) (b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of—
(1) the fact of the entry of the order or the application;
(2) the date of the entry and the period of authorized, approved or disapproved interception, or the denial of the application; and
(3) the fact that during the period wire or oral communications were or were not intercepted.
The judge, upon the filing of a motion, may in his discretion make available to such person or his counsel for inspection such portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent jurisdiction the serving of the inventory required by this subsection may be postponed.

Two classes of individuals are contemplated by this statute; (1) those who must be served with inventory notice by the issuing or denying judge; and (2) those who may be served with inventory notice provided the judge, in exercising his discretion, has determined that such service will be in “the interest of justice.” Given that the record is unclear regarding whether the order or application named any of the present appellees, for purposes of our analysis they will all be treated as falling within the second of these classes.

Although there is no written record of the January 11, 1973 meeting, both appellant’s brief and the order granting the motion to suppress indicate that the district judge fulfilled his § 2518(8) (d) duties on the basis of information which had been supplied to him by the government attorney. The judge was presented with the names of those individuals who had been named in the wire interception approval order, and thus were entitled under the statute to receive an inventory notice. However, none of the present appellees fit within this class. The government attorney also disclosed the names of those individuals upon whom conventional search warrants had been executed; but none of the appellees were members of this group either. Finally, the government attorney indicated to the judge the names of all individuals against whom the government intended to seek indictments. However, as of the date of this meeting the government had determined that the evidence against the appellees was insufficient to warrant their indictment; and, thus, they were also not within this last group. As a result, their names were never revealed to the judge.

Following the above meeting, the judge determined that forty-one persons, none of whom are appellees herein, were to be served with inventory notice; and on January 12, 1973, the judge executed an order to that effect. Shortly after this order had been issued, the government reassessed the existing evidence and decided that appellees should be indicted. The judge, however, was never informed by government attorneys of this change in circumstances. On March 21, 1973, appellees were indicted with thirty-seven other defendants, all of whom had received an inventory notice pursuant to the January 12, 1973 order. Appellees have never received formal § 2518(8) (d) inventory notice.

On June 25, 1973, a motion was made to suppress the intercepted communications because of non-compliance with § 2518(8) (d). In ruling on this motion, the judge first indicated that he would have included appellees in his January 12, 1973 order had he been aware that they might have been subject to indictment. He then reasoned that, because of the government’s failure to bring their existence to his attention, he had been precluded from properly exercising the discretion vested in him under the statute. Persuaded that because of the nature of the evidence the mere passage of time had prejudiced appellees’ ability to defend against the indictments, he concluded that suppression was required. In so doing, he relied on United States v. Eastman, 465 F.2d 1057 (3rd Cir., 1972). It is from this order that the government appeals.

A careful reading of Title III reveals that Congress did not attempt to develop an inflexible set of rules specifically designed to afford protection to those who, although not named in an application or order, have their conversations overheard as a result of a properly authorized wiretap. Although such individuals are subject “to search,” the protection they receive is, for the most part, derived from that which has been provided for those named in the application or order. The potential inadequacy of this derivative protection comes to the fore in the area of inventory notices. The unnamed, but overheard, are entitled to such notice only to the extent the issuing judge in his discretion determines that the interest of justice so requires.

It is against this statutory background that we must analyze the district court’s order. In doing so, we shall utilize two distinct levels of inquiry — one constitutional, the other statutory.

II.

SUPPRESSION UNDER THE FOURTH AMENDMENT

Turning initially to the constitutional level, the issue before us is whether the failure to serve appellees with inventory notice, given the circumstances of this case, constitutes a violation of their Fourth Amendment rights. Should such a violation be found, suppression would be required under the judicially-fashioned exclusionary rule.

In Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), the Supreme Court enunciated certain constitutional standards which a valid wiretapping statute must contain. Among those standards were notice procedures and procedures for a return on the warrant. 388 U.S. at 60, 87 S.Ct. 1873. See also Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). However, Congress carefully considered the mandate of these cases in drafting the provisions of Title III. See, e. g., 1968 U.S.Code Cong, and Adm.News at 2153.

To compensate partially for the loss of prior notice, which is traditionally available in the use of conventional search warrants, Title III requires a showing of special circumstances before a wiretap may be authorized. 18 U.S.C. § 2518(1)(c) and (3)(c). For the same reason, post-use notice is also required. Thus, those named in the wiretap order or application must be given a proper inventory notice. 18 U.S.C. § 2518(8) (d). Moreover, copies of the Court order and application under which the interception was authorized or approved must be given to “each party” within ten days of a proceeding before the contents of the interception may be used in any trial, hearing, or other proceeding. 18 U.S.C. § 2518(9).

Title Ill’s statutory scheme has consistently passed constitutional scrutiny. See, e. g., United States v. Whitaker, 474 F.2d 1246 (3rd Cir., 1973); United States v. Cafero, 473 F.2d 489 (3rd Cir., 1973); United States v. Cox, 462 F.2d 1293 (8th Cir., 1972); United States v. Ripka, 349 F.Supp. 539 (E.D.Pa.1972). While not intending to express any doubt about the correctness of these authorities we point out that the unnamed but overheard are also entitled to Fourth Amendment protection. Specifically, we believe that when the government intends to use the contents of an interception or evidence derived therefrom, to obtain an indictment against an unnamed but overheard individual, such individual must be given notice promptly after the decision to obtain an indictment has been made. At a minimum, this notice must include all the information which is contained in a § 2518(8) (d) inventory notice. In this context, the determination of what constitutes “promptly” should focus on whether the individual has been afforded a reasonable opportunity to prepare an adequate response to the evidence which has been derived from the interception.

We find nothing in Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), that would deprive an unnamed but overheard defendant of standing to assert this constitutional right. To so do is not the vicarious assertion of the rights of another, it is assertion of the defendant’s legitimate expectation of privacy.

It may be that the district judge believed that the appellees’ Fourth Amendment rights, as here delineated, had been violated; but the state of the record does not enable us to assert this with confidence. For this reason, as well as for others set forth hereafter, we reverse the order granting the motion to suppress and remand the case to the district court for a determination of this issue. If a constitutional violation is found, then suppression must follow under the judicially-fashioned exclusionary rule. See Berger v. New York, supra; Katz v. United States, supra. However, we also note that even in the absence of a constitutional deficiency, it may still be that the provisions of Title III will independently require such a result.

III.

VIOLATION OF 18 U.S.C. § 2518(8)(d)

Under Title III, the proper disposition of a motion to suppress rests on a dual inquiry — whether there has been a violation of Title III; and, if so, whether the particular violation is of the type which requires suppression. Turning to whether there has been a violation of § 2518(8) (d) in the instant case, we begin with the literal language of the statute, which provides in pertinent part that “the issuing or denying judge shall cause to be served, on such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice. . . . ” However, in order for the judge to properly exercise this discretion, there must be the requisite interaction of judgment and a knowledge of the pertinent facts. Discretion cannot be exercised in a factual vacuum. The issues here, then, concern the scope of information to which the judge must have access before he can fulfill the discretionary aspects of his § 2518(8)(d) duties and the identity of the party who appropriately should bear the burden of providing that information. The language of the statute itself does nothing to resolve these questions, nor has our research disclosed any cases which deal specifically with this problem.

The legislative history of Title III is more helpful. As indicated in the Senate Report:

Title III has as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.

1968 U.S.Code Cong, and Adm.News at 2112, 2153 (S.Rep.No.1097), 90th Cong., 2nd Sess. (1968)). Section 2518(8)(d) furthers these purposes in several ways. First, it contributes substantially to one of the Act’s underlying policies — the imposition of judicial supervision and control over all aspects of an authorized wiretap. In addition, Congress intended § 2518(8) (d) to further the following interrelated objectives: to reflect the inventory and notice system for conventional search warrants contained in Rule 41, F.R.Crim.P.; to reduce the threat of completely surreptitious surveillance; to afford “aggrieved persons” the opportunity to pursue an appropriate remedy; to deter abusive use of wiretaps; and to win the confidence of the community that the techniques are fairly employed.

However, as originally proposed § 2518(8)(d) would have required only that the inventory notice be served on the persons named in the wiretap order or application. It was not until the incorporation of an amendment proposed by Senator Hart, which provided for discretionary service of inventory notice to persons other than those named in the order or application, that the unnamed but overheard were accorded some protection under the Act. In addition to being in harmony with the more general aims of the statutory scheme, this amendment was designed to require the court to balance, in each instance, the rights of the various parties involved in a wiretap surveillance.

To discharge this obligation the judicial officer must have, at a minimum, knowledge of the particular categories into which fall all the individuals whose conversations have been intercepted. Thus, while precise identification of each party to an intercepted communication is not required, a description of the general class, or classes, which they comprise is essential to enable the judge to determine whether additional information is necessary for a proper evaluation of the interests of the various parties. Furthermore, although the judicial officer has the duty to cause the filing of the inventory, it is abundantly clear that the prosecution has greater access to and familiarity with the intercepted communications. Therefore we feel justified in imposing upon the latter the duty to classify all those whose conversations have been intercepted, and to transmit this information to the judge. Should the judge desire more information regarding these classes in order to exercise his § 2518(8) (d) discretion, we also hold that the government is required to furnish such information as is available to it. It is our belief that this allocation of responsibilities between the executive and judicial branches of government will best serve the dual purposes underlying Title III.

The failure of the government to provide the judge with even a general description of the appellees in the present case was thus sufficient to constitute a violation of § 2518(8) (d). To repeat, appellees were individuals whose conversations had been intercepted; they were under serious investigation for possible indictment for illegal gambling activities and later actually were indicted; the judge issuing the wiretap order would have required them to be served with inventory notice pursuant to § 2518(8) (d) had he known of their existence and capacities; and his lack of knowledge came about because of the government’s failure to disclose that information to him. The inescapable result is that the judge was denied the opportunity to exercise his discretion with respect to appellees. This contravenes both the spirit and the letter of § 2518(8)(d).

IV.

SUPPRESSION OF EVIDENCE UNDER TITLE III

There remains the issue of whether the Act requires that the evidence against appellees be suppressed. Resolution of this issue is largely governed by two Supreme Court decisions which were rendered following the district judge's ruling in the instant case. In United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), the Supreme Court held that suppression was required under 18 U.S.C. § 2518(10) (a)(i) where a wiretap application had been authorized by the Attorney General’s Executive Assistant, rather than by either the Attorney General or any specially designated Assistant Attorney General as expressly required by 18 U.S.C. § 2516(1). However, in United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974), the Court also held that misidentifying the Assistant Attorney General as the official authorizing the wiretap, when the Attorney General himself had actually given the approval, was not the kind of statutory violation which requires suppression under the Act.

As analyzed by the Court:

The issue does not turn on the judicially fashioned exclusionary rule aimed at deterring violations of Fourth Amendment rights, but upon the provisions of Title III ...
Section 2515 provides that no part of the contents of any wire or oral communication, and no evidence derived therefrom, may be received at certain proceedings, including trials, “if the disclosure of that information would be in violation of this chapter.” What disclosures are forbidden, and are subject to motions to suppress, is in turn governed by § 2518(10) (a), which provides for suppression of evidence on the following grounds:
“(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was intercepted is insufficient on its face;
(iii) the interception was not made in conformity with the order of authorization or approval.”

United States v. Giordano, supra, 416 U.S. at 524, 94 S.Ct. at 1831.

In these two cases the Court refused to limit the “unlawfully intercepted” language of § 2518(10) (a) (i) to constitutional violations. Giordano, supra at 524-528, 94 S.Ct. 1820. However, the Court in Chavez makes clear that Giordano “did not go so far as to suggest that every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications ‘unlawful’.” Chavez, supra, 416 U.S. at 574, 94 S.Ct. at 1856. In order to require suppression, the particular violation must fall within the scope of § 2518(10) (a) (i), which has been defined to encompass the

failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.

Giordano, supra, 416 U.S. at 527, 94 S.Ct. at 1832. Thus, the precise issue before us at this juncture in our analysis is whether the violation of § 2518(8) (d) here involved falls within the bounds of the above-quoted language.

In resolving this issue, Chavez and Giordano suggest that there are several important factors which should be considered. As an initial matter, it must be determined whether the particular procedure is a central or functional safeguard in Title Ill’s scheme to prevent abuses. Chavez, supra, 416 U.S. at 578, 94 S.Ct. 1849; Giordano, supra, 416 U.S. at 516, 94 S.Ct. 1820. If this test has been met, it must also be determined whether the purpose which the particular procedure was designed to accomplish has been satisfied in spite of the error. Chavez, supra, 416 U.S. at 573-574, 94 S.Ct. 1849; Giordano, supra, 416 U.S. at 524-528, 94 S.Ct. 1820. While in most situations it would not be necessary to reach beyond the above-mentioned factors, it may be that in some instances they will not be completely determinative. In such cases, Chavez implicitly suggests a third factor which may have a bearing on the issue — i. e. whether the statutory requirement was deliberately ignored; and, if so, whether there was any tactical advantage to be gained thereby.

As we analyze § 2518(8) (d), the inventory notice provision is a central or at least a functional safeguard in the statutory scheme. Therefore, a violation thereof may require suppression under Giordano. However, the record is unclear as to whether the underlying statutory purpose behind the § 2518(8) (d) formal notice provisions has been satisfied in spite of appellees’ failure to receive such formal notice. In addition, the district judge found that the source of the violation was an “inattention to detail on the part of the government or of the judge or both,” which distinguishes this case from the deliberate flouting of a provision of Title III that occurred in United States v. Eastman, 465 F.2d 1057 (3rd Cir., 1972), aff’g 326 F.Supp. 1038 (M.D.Pa.1971. Finally, the facts do not unequivocally indicate a deliberate attempt by the government to gain any tactical advantage.

While we might be tempted to affirm the district judge’s suppression of the evidence, we believe it more appropriate from the standpoint of sound judicial administration to reverse and remand so that there may be a reconsideration in the light of Chavez, Giordano and this opinion. In this manner, the parties and the district judge will be given an opportunity to focus upon both the constitutional and statutory grounds for suppression. At the same time, such a disposition will spare us the discomfiture of attempting to apply new law to a record which was developed before that law had been fashioned.

Reversed and remanded.

      . Appellee Masutani claims that he was named in the application for the order, and is thus entitled to receive mandatory inventory notice. Given our holding that there has been a violation of § 2518(8) (d), we see no need at this time to distinguish Masutani from the other appellees.

      . It should be noted that the statute also requires inventory notice to be given to those individuals named ... in the application” for the order. This is the subject of appellee Masutani’s claim. See supra, note 1.

      . Appellee Masutani initially moved for the suppression, and was later joined by several of the appellees on their own motions. The remainder were joined by the court pursuant to an understanding that each defendant would be held to have joined in those motions of the other defendants which were pertinent to him.

      . Although we realize that many constitutional violations were intended to be covered under the Act, see United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed. 2d 341 (1974); United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974), we separate the statutory and the constitutional issues for ease of analysis.

      . Section 2518(8) (d) was clearly meant to provide this post-use notice. The Senate Report on that subparagraph states: “Yet the intent of the provision is that the principle of post-use notice will be retained.” 1968 U.S.Code Cong, and Adm.Xews at 2194. Such post-use notice functions to provide individuals with the opportunity to exercise their constitutional right to challenge the validity of a wiretap, and, thereby, the admissibility of evidence obtained or derived therefrom. See Alderman v. United States, 394 U.S. 165, 183, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). Section 2518(9) performs a dual function. First, it operates to provide the requisite post-use notice to aggrieved persons in those instances where it is not supplied by subparagraph 2518(8) (d). United States v. Ripka, 349 F.Supp. 539, 541-542 (E.D.Pa.1972). At the same time it also operates to provide additional information to an individual who lias received § 2518(8) (d) notice, and who is subsequently indicted, so that he may be in a better position to attack the validity of the initial order.

      . Section 2518(9) provides:
      (9) The contents of any intercepted wire or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a Federal or State court unless each party, not less than ten days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved. This ten-day period may be waived by the judge if he finds that it was not possible to furnish the party with the above information ten days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving such information.
      18 U.S.C. § 2518(9).

      . If the individual has been called as a witness before the grand jury, he would have a right at that point to attack the surveillance, see 18 U.S.C. § 3504(a), and notice would be required within a sufficient time prior to his appearance to allow an opportunity to prepare an adequate response. If, however, the individual has not been called as a witness before the grand jury, his first opportunity to attack the surveillance would be in preparation for trial. See In re Grand Jury Subpoena of Fred Vigorito, 499 F.2d 1351 (2d Cir., 1974). Thus notice, as outlined in the text, would not be necessary until a later point in time.

      . One case, however, United States v. Whitaker, 474 F.2d 1246 (3rd Cir., 1973), in holding that Title III was not constitutionally defective by requiring prompt notice only to those named in the order or application, and not to all persons whose conversations were intercepted, stated:
      That section [2518(8) (d) ], moreover, gives the judge discretion to cause service of the inventory upon other parties to the communication in cases where the communication has been such that the identity of such other parties is in fact known. But as we pointed out in Oafero, supra, Congress has directed that in the exercise of that discretion the district court carefully weigh the competing claims to privacy arising of necessity from the interception of spoken communications.

        Id. at 1247.

      . Tliis policy was expressly stated by Congress as follows:
      [T]he interception of wire or oral communications . . . should be allowed only when authorized by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court.
      Pub.L.No.90-351, § 801(d), 82 Stat. 211-212 (1968). See also 1968 U.S.Code Cong, and Adm.News at 2177; Berger v. New York, supra, 388 U.S. at 54 and 60, 87 S.Ct. 1873; Katz v. United States, supra, 389 U.S. at 356, 88 S.Ct. 507.

      . The Senate’s report on § 2518(8) (d) reveals these objectives and states :
      Subparagraph (d) places on the judge the duty of causing an inventory to be served by the law enforcement agency on the person named in an order authorizing or approving an interception. This reflects existing search warrant practice. See Federal Rules of Criminal Procedures, 41(c); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The inventory must be filed within a reasonable period of time, but not later than 90 days after the interception is terminated. It must include notice of an entry of the order, the date of its entry, the period of authorized or approved interception, and whether or not wire or oral communications were intercepted. On an ex parte showing of good cause, the serving of the inventory may be, not dispensed with, but postponed. For example, where interception is discontinued at one location, when the subject moves, but is reestablished at the subjects [sic] new location, or the investigation itself is still in progress, even though interception is terminated at any one place, the inventory due at the first location could be postponed until the investigation is complete. In other situations, where the interception relates, for example, to a matter involving or touching on the national security interest, it might be expected that the period of postponement could be extended almost indefinitely. Yet the intent of the provision is that the principle of postuse notice will be retained. This provision alone should insure the community that the techniques are reasonably employed. Through its operation all authorized interceptions must eventually become known at least to the subject. He can then seek appropriate civil redress for example, under section 2520, discussed below, if he feels that his privacy has been unlawfully invaded.

        See 1968 U.S.Code Cong, and Adm.News at 2194. See also Task Force Report at 97 and 104; ABA Project, Approved Draft at 92 and 161-162.

      . The provisions of S. 917, 90th Cong., 1st Sess. (1967), were eventually enacted as Title III of the Omnibus Crime Control and Safe Streets Act of 1968. S.Rep.No.1057 on S. 917 was issued on April 29, 1968. Amendment No. 754, which provided for discretionary service for inventory notice to those not named in the wiretap order or application, was not proposed until May 9, 1968. 114 Cong.Ree. 12508 (1968). It was discussed and approved by the Senate on May 22, 1968. 114 Cong.Rec. 14485-86 (1968). On May 23, 1968, II.R. 5037 was passed by the Senate in lieu of S. 917 as amended 114 Cong.Ree. 14798 (1968).

      . For example, if A, under an order, talks witli U, notice is only required to be served on A. However B’s rights may also have been violated, and without notice he lacks redress. Therefore, notice to B may serve the interest of justice. On the other hand, if A is a businessman and B is a customer, notice to B of a wiretap directed at A may severely damage A’s business reputation. In this case, the interests of A’s privacy may not justify notice to B. See The Association of the Bar of the City of New York, Committee on Federal Legislation, Committee on Civil Rights, Proposed Legislation on Wiretapping and Eavesdropping after Berger v. New York and Katz v. United States, 11.4 Cong.Rec. 14470, 14476 (1968). See also 114 Cong.Rec. at 12508 (explanation of Amendment No. 754 by Senator Hart), 14485-86 (comments by Senator Hart urging approval of Amendment No. 754), and 1470 (Department of Justice Comment urging approval of Amendment No. 754).

      . See ABA Project, Tentative Draft at 161. See also 1968 U.S.Code Cong, and Adm. News at 2194; United States v. Escandor, 319 F.Supp. 295, 299 (S.D.Fla.1970).

      . Appellant points out that the government attorney may have asked the judge if he needed additional information in determining the individuals to receive § 2518(8) (d) notice. Although this possibility remains unverified even if it were true our holding would not change under the circumstances of this case. The information which was supplied would still have been insufficient to enable the judge to determine whether such additional information was necessary.

      . Each application for a court order authorizing the interception of a wire or oral communication, 18 U.S.C. § 2518(1) (a), and each interception order, 18 U.S.C. § 2518(4) (d), must identify the officer authorizing the application.

      . Since we have already dealt with the constitutional basis for suppression, see supra at 536-538, the suppression issue before us at this point is confined to the provisions of Title III and does not turn on the exclusionary rule. In analyzing those provisions, we find that § 2518(10) (a) (ii) and (iii) are inapplicable to this case.

      . We realize that the language “unlawfully intercepted” must be stretched to include failures of conditions subsequent to a valid authorization and execution. However, we believe this stretching is within permissible bounds and is in keeping with the spirit of the provision given the purpose of the evi-dentiary sanction to “compel compliance with the other prohibitions of the chapter.” 1968 U.S.Code Cong, and Adm.News at 2184.

      . This belief finds support in the legislative history. Thus, for example, it has been stated that:
      Th'is provision alone should insure the community that the techniques are reasonably employed.
      1968 U.S.Code Cong, and Adm.News at 2194. [T]he deterrent and publicity effects of this provision could be expected to go a long way toward guaranteeing that the equipment would be carefully used.
      Task Force Report at 104.
      The provision constitutes, in short, a key-element in the system of checks and balances envisioned by the standards to prevent abuses and win the confidence of the community that the techniques are fairly employed.
      ABA Project, Approved Draft at 162.

      . In Eastman, the judge who granted the wiretap authorization had expressly waived service of the inventories at the time he approved the wiretap applications. Faced with a clear and deliberate failure to comply with the statutory provisions, the court held that:
      The touchstone of our decision on this aspect of the case at bar is not one in which an inventory was delayed but rather is one in which specific provisions of Title III were deliberately and advertently not followed. In other words the failure to file the notice of inventory is no mere ministerial act. It resulted from a judicial act which on its face deliberately flouted and denigrated the provisions of Title III designated for the protection of the public. This we cannot countenance. The communications were unlawfully intercepted. Therefore, the provisions of § 2518(10) (a) (i) apply and the motion to suppress must be granted.
      465 F.2d at 1062. Absent such showings of a deliberate disregard of the provisions of Title III, it is our view that the district court’s reliance on Eastman in the present case was misplaced. See United States v. Cafero, 473 F.2d 489 (3rd Cir., 1973); United States v. Wolk, 466 F.2d 1143 (8th Cir., 1972); United States v. Ripka, supra; United States v. LaGorga, 336 F.Supp. 190 (W.D.Pa.1971).


source: Caselaw Access Project

author: FAIRCHILD, Circuit Judge. SWYGERT, Chief Judge SPRECHER, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James V. PACENTE, Defendant-Appellant.
    No. 72-1988.
    United States Court of Appeals, Seventh Circuit.
    Argued en banc April 10, 1974.
    Decided Aug. 6, 1974.
    Certiorari Denied Dec. 9, 1974.
    See 95 S.Ct. 623.
    Swygert, Chief Judge, dissented on basis of opinion of majority of division of court which originally heard and decided appeal.
    Sprecher, Circuit Judge, dissented with statement.

      Julius Lucius Echeles, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., Gary L. Starkman, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, and FAIRCHILD, CUMMINGS, PELL, STEVENS and SPRECHER, Circuit Judges.
   FAIRCHILD, Circuit Judge.

Defendant Pacente appealed from convictions of extortion under 18 U.S.C. § 1951, and of a false material declaration before a grand jury, under § 1623. A panel of this court reversed and remanded for a new trial. United States v. Pa-cente, 490 F.2d 661 (7th Cir. 1973). Pursuant to the government’s suggestion, we reheard the appeal en banc.

Defendant, a Chicago police officer, was indicted on two counts. The first charged the extortion of $200 from Ko-vacevie, a liquor store owner. The second charged that defendant made a materially false declaration to the grand jury in denying that he had ever received a certain $200 check, and alleged that he had in fact received it at the time of the alleged extortion. Before trial, defendant moved that the court require the government to elect on which count to proceed, or alternatively, order separate trials. The district court denied this motion. Defendant does not appear to have renewed the motion during the course of the trial, although he did unsuccessfully raise the issue in his motion after verdict.

The government’s evidence is summarized in 490 F.2d 662-663 and requires only brief description here. Kovacevie, owner of Chicago-Oak Liquors, testified that on June 10, 1971, defendant entered his store and accused him of having sold liquor to a minor. Defendant informed Kovacevie that he would be arrested, and then asked, “How much money can you give me?” After negotiations, Kova-cevic gave defendant a check for $200 payable to cash; no arrest occurred. The parties stipulated that, before the grand jury, the prosecutor had shown defendant a $200 Chicago-Oak Liquors check, dated June 10, 1971, signed by Kovacevie and payable to cash. Defendant then denied receiving the check.

I.

Defendant argues that the indictment misjoins the extortion and false declaration counts contrary to Rule 8(a), F.R.Cr.P., and, even if a joint indictment is permissible, that Rule 14 requires separate trials.

Rule 8(a) provides:
“Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”

As stated by the panel, both offenses are “ ‘based on the same act or transaction’: Pacente’s taking of the $200 from Kovacevie” and both require substantially the same proof. See United States v. Sweig, 441 F.2d 114, 118-119 (2d Cir. 1971), cert. denied, 403 U.S. 932, 91 S.Ct. 2256, 29 L.Ed. 711. We conclude, as did the panel, that Rule 8(a) permitted joinder.

Rule 14, F.R.Cr.P., provides in part: “If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.”

The grant or denial of severance or separate trials under Rule 14 is discretionary. See, e. g., United States v. Kahn, 381 F.2d 824, 841 (7th Cir. 1967) cert. denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661; United States v. Quinn, 365 F.2d 256, 267 (7th Cir. 1966). Denial of relief will produce reversal only if abuse of discretion is shown. United States v. Rogers, 475 F.2d 821, 828 (7th Cir. 1973).

Review of the exercise of this discretion must be based on the state of the record at the time of the motion. Rogers, supra.

In United States v. Sweig, 316 F.Supp. 1148 (S.D.N.Y. 1970), aff’d 441 F.2d 114 (2d Cir. 1971), cert. denied, 403 U.S. 932, 91 S.Ct. 2256, 29 L.Ed.2d 711, Sweig and Voloshen were indicted for conspiracy to defraud the United States, and a number of overt acts were alleged. A number of other counts charged one or the other defendant with perjury in testimony before the grand jury concerning the transactions charged as overt acts. Because joint trial of defendants on the conspiracy count was unquestionably permissible, and because substantially all the evidence on the perjury counts could properly be heard in such joint trial for conspiracy even if the perjury counts were absent, the district court denied severance of defendants (and apparently separate trials of the perjury counts), but did so without prejudice to a renewed application later on, noting that “It remains possible, of course, that different things or a different light may appear as the case advances toward or through the trial stage.”

Voloshen pleaded guilty. Sweig was convicted and appealed, arguing that the conspiracy and perjury counts should not have been tried together. In affirming, the Second Circuit noted that Sweig had not taken advantage of the willingness of the district court to reconsider at a later stage and held that under the circumstances, the denial of the motion was not plain error. Evidently the court of appeals deemed it was not an abuse of discretion to deny separate trials where the sole ground of the motion was that one count charged conspiracy and other counts charged perjury before the grand jury with respect to elements 'of the conspiracy.

“To find an abuse of discretion it would be necessary, in effect, to find that the facts and law presented to the trial judge at the time of the motion for severance demonstrated that a trial under joinder was likely to be unfair and that the trial was in fact unfair.” Kahn, supra, 381 F.2d at 841. See also United States v. Blue, 440 F.2d 300, 302 (7th Cir. 1971), cert. denied, 404 U.S. 836, 92 S.Ct. 123, 30 L.Ed.2d 68.

Defendant’s claim of prejudice is based on the supposed effect on the jury’s consideration of Count I of information the jury would glean from Count II. One of the allegations of Count I was that defendant obtained $200 from Kovacevic in June, 1971. Count II charged that defendant declared to the grand jury under oath that he never received a $200 Kovacevic check, payable to cash, dated June 10, 1971, and charged that such declaration was false in that he had received such check on June 10. Competent evidence that defendant received the check June 10 would tend to establish an element of both counts. Defendant argues that in considering whether or not defendant received the $200 as charged in Count I, the jury would not only have before it such competent proof, but, in addition, would be aware from Count II (and proof of defendant’s grand jury testimony) (1) that defendant had told the grand jury he did not receive the check, and (2) that the grand jury did not believe the defendant. If Count I were tried separately, on the other hand, the jurors would be unaware of (1) and (2).

It is claimed that the jury’s awareness of (1) and (2) was prejudicial to fair consideration of Count I because the grand jury’s disbelief of defendant’s denial would discredit defendant’s denial at trial if he chose to testify, and would in any event tend to make the proof against him seem more persuasive.

The view which the trial jury ought to take is that each count is a mere accusation. Although the issue concerning receipt of the $200 check was central to each count, proof on that issue was to be weighed and the issue resolved according to the instructions of the court, and not differently by reason of the presence of two accusations as to both of which the issue was significant. In order to find merit in defendant’s position, we would have to assume that the trial jurors will treat Count II not merely as a formal accusation of a false declaration, but as a pronouncement, worthy of respect, of an opinion concerning Count I. Trial jurors may in fact know what a grand jury is and how it functions. A trial juror may or may not realize that the standard of certainty required of a grand jury is probable cause to believe that a defendant has committed an of-' fense, and may believe that a grand juror will not vote to indict for a false statement unless personally convinced that the witness lied. Conceivably a trial juror may be influenced in deciding to believe a witness' testimony by the fact that the grand jurors heard the same testimony and did not believe it.

These things are all conceivable, but it is the judgment of a majority of this court that it is an unwarranted over-refinement to speculate that they present a significant danger that the trial jurors, acting together, will give weight to the conclusion reached by the grand jurors and fail to decide the issues of fact according to their own proper evaluation of the evidence.a

Jurors are ordinarily, and were in this case, fortified in viewing the indictment as mere accusation, by instructions from the court. They were told:

“The indictment that I am going to refer to in a few moments is not evidence of the defendant’s guilt, it is simply, as I told you before [presumably on voir dire], the manner by which the government accuses a person of a crime and you should not be prejudice [d] against a defendant because an indictment has been returned against him. .
“You are instructed to consider the testimony given by the defendant Pa-centé before the Grand Jury on February 22nd only as evidence under Count 2 of the indictment and you should not consider it as evidence on any other count in the indictment. . . .
“Now, there are two counts in this indictment, and, as I have told you, each one charges a separate crime. You should consider each one separately. The defendant’s guilt or innocence of the crime charged in one count should not affect your verdict on the other count. . . . ”

We think these instructions were a meaningful protection against the possibility that the trial jurors would give weight, in considering whether to convict on Count I, to the determinations the grand jurors made in indicting on Count II. The feared reaction is not so natural, instinctive, or compelling as the one which caused the Supreme Court to reject as inadequate protection the instruction to disregard as to one defendant the incriminatory portion of another defendant’s admissions involved in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

“Our theory of trial relies upon the ability of a jury to follow instructions.” Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101 (1954). “Of course, curative instructions are no panacea, . . . but our jurisprudential system assumes, at least to some extent, that juries are able to grasp the fundamental distinction between allegations in an indictment and evidence pointing toward guilt.” Dallago v. United States, 138 U.S.App.D.C. 276, 427 F. 2d 546, 552, fn. 13 (1969).

United States v. Grady, 185 F.2d 273 (7th Cir. 1950) and United States v. Douglas, 155 F.2d 894 (7th Cir. 1946), relied on by defendant, are inapposite. In those cases, affidavits attesting to facts supporting the charges in the criminal informations were sent to the jury along with the informations.- We reversed because the defendant was deprived of the right to confront the af-fiants.

In Douglas, supra, at 895-96, the court observed: “No complaint is made because the information was permitted to go to the jury, but the criticism is directed solely at the affidavits. It is one thing to send to the jury an indictment or information, the accusation against the defendant, but something entirely different to send affidavits containing the government’s proof in support of such accusation.” See also Grady, supra, at 275. The grand jurors who voted Count II are analogous to the uncon-fronted affiants in Grady and Douglas only if it is assumed that the petit jury treats Count II as evidence with respect to Count I.

Defendant suggests that prejudice was inevitable at a joint trial because of a factor unique to this case: At the time of the alleged false declaration, Rule 51 of the Chicago Police Department prohibited an officer’s refusal to testify, on grounds of self-incrimination, before a grand jury. This court recently held Rule 51 unconstitutional “to the extent that it denies police officers the privilege against self-incrimination where criminal prosecution may follow.” Confederation of Police v. Conlisk, 489 F.2d 891, 895 (7th Cir. 1973), cert. denied, sub nom. Rochford v. Confederation of Police, 416 U.S. 956, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974). When defendant appeared before the grand jury, however, his choice appeared to be either to relinquish the Fifth Amendment privilege or risk the loss of his employment. He contends that the false declaration charge was a product of that dilemma. In his view, it was unfair to require him simultaneously to defend both the extortion and false declaration counts based on his coerced denial of the facts underlying the extortion.

We are unable to agree with this analysis. First, the pressures to which the rule subjected a policeman-witness at grand jury proceedings have little bearing on the propriety of a joint trial on the resulting charges. In essence, defendant’s argument is that the rule made it unfair to question him before the grand jury and indict him for a false answer. If the argument were accepted, the relief should be dismissal of Count II, not separate trials.

Despite, however, the threat of discharge implicit in the department rule, the false declaration count was not improper. Before the grand jury, defendant could have invoked the privilege against self-incrimination, and refused to answer regarding receipt of the |200 check. In that event, despite the rule, the department could not lawfully have discharged him for his insistence on the privilege. Gardner v. Broderick, 392 U. S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Sanitation Men Ass’n, Inc. v. Sanitation Comm’r, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968). This was the court’s holding in Confederation of Police v. Conlisk, supra. On the other hand, defendant could, as he did, waive the privilege and answer. In that event, his testimony regarding past conduct could not be used against him in a criminal proceeding involving such conduct. Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). The compulsion of the rule does not, however, justify a witness in testifying falsely. “In short, while a public employee may not be put to the Hobson’s Choice of self-incrimination or unemployment, he is not privileged to resort to the third alternative, i. e., lying.” United States ex rel. Annunziato v. Deegan, 440 F.2d 304, 306 (2d Cir., 1971). Whether defendant’s denials of wrongdoing were true or false was for the pet-it jury to decide. Nothing, however, about Police Department Rule 51 precluded prosecution for false declarations. See discussion United States v. Devitt, 499 F.2d 135 at 140-142 (7th Cir. 1974).

For these reasons, we conclude that the district court was within its discretion in deciding that the probability of prejudice at a single trial on both offenses was too speculative to require severance. The factors available to the court at the pretrial motion stage did not dictate a contrary result, and nothing emerged during the trial to refute the initial ruling. In light of this, the court was correct in endeavoring “to balance possible prejudice to the defendant from joinder with the public interest in efficient use of judicial time through joint trial of defendants and offenses which are connected.” United States v. Rogers, supra, at 828. The district court did not abuse its discretion in denying the motion for separate trials under Rule 14.

II.

Defendant asserts four additional arguments for the reversal of his convictions. The panel which first heard the appeal found it unnecessary to reach these contentions, but in view of our different conclusion on the matter of separate trials, the other points must now be considered.

A. Effect on interstate commerce.

Defendant argues that there was no proof that the extortion obstructed, delayed, or affected interstate commerce.

At trial, the parties stipulated to the facts pertinent to this contention: During 1971, Chicago-Oak Liquors (Ko-vacevic) purchased beer and liquor on a regular basis from distributors located in Chicago. These distributors obtained their beer and liquor from sources outside Illinois.

Defendant’s argument that the goods had come to rest in Chicago and that the sales from the distributors to Chicago-Oak Liquors were purely intrastate transactions has been disposed of in United States v. DeMet, 486 F.2d 816, 821-822 (7th Cir. 1973), cert. denied, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974). The facts were sufficiently similar to those in the present case. The court observed:

“Although [the tavern-owner’s] business was primarily local, depletion of [his] assets by the goods and money extorted, or the cessation of his business if he did not yield and his fears were realized, would tend to reduce the demand for and amount of beer and liquor moving into Illinois. The effect on interstate commerce would exist, though small by most standards, and only indirectly caused by defendant’s acts. * * *
* * * *
“Where the victim of extortion, as here, customarily obtains inventory which has come from outside the state, obstruction and delay of and effect upon commerce may, for the purpose of the Hobbs Act, be found in curtailment of the victim’s potential as a buyer of such goods, This may be traced either through the depletion of his assets by his fulfillment of the extortionate demands or the harm which would follow if the threats were carried out.”

Defendant also argues that an inadvertent omission from instructions on the effect on commerce, though not challenged at the appropriate time, is reversible error.

18 U.S.C. § 1951(b)(3) defines “commerce” for Hobbs Act purposes as:

“Commerce within the District of Columbia, or any territory or possession of the United States; all commerce between any point in a state, territory, possession or the District of Columbia, and any point outside thereof; all commerce between points within the same state through any place outside such state, and all other commerce over which the United States has jurisdiction.” (Italics ours.)

The italicized second element of the definition is the element most specifically germane to the evidence in this case. It seems quite clear that the court intended to read the second element, either alone or followed by the third and fourth elements. Inadvertently the court skipped to the third element and instructed only:

“And the term ‘commerce’ means all commerce between points within the same state through any place outside such state and all other commerce over which the United States has jurisdiction.”

Standing alone, the statement is literally correct, but not very helpful in this particular case. No one called the matter to the court’s attention. Although the court did not ask for objections at the close of the instructions, under Rule 30, F.R.Cr.P., there was an adequate opportunity at a short colloquy about other matters immediately after the jury retired.

In the context of the entire record we do not consider the omission “basic and highly prejudicial error.” Cf. United States v. Esquer, 459 F.2d 431, 435 (7th Cir. 1972), cert. denied, 414 U.S. 1006, 94 S.Ct. 366, 38 L.Ed.2d 243; United States v. Malasanos, 472 F.2d 642, 644 (7th Cir. 1973); United States v. Cantu, 501 F.2d 1019 at 1021 (7th Cir. 1972). Rule 30 F.R.Cr.P. It must have been clear to all that commerce between Illinois and other states was being referred to.

In an opening statement government counsel acknowledged that the government must show that the alleged extortion “in some way affected interstate commerce” and said there would be stipulated evidence to show that Kovacevic bought beverages from local distributors who had bought them from sources outside Illinois. The parties stipulated that three representatives of distributors in Chicago would testify, if called, that he sold merchandise to Kovacevic which had been bought from a number of persons at specified locations outside Illinois.

In final argument government counsel said it is clear that Kovacevic dealt in products that came from outside Illinois, and that the extortion affected interstate commerce. In response defense counsel referred to the stipulated testimony and asked whether there wasn’t a reasonable doubt whether taking $200 away from the tavern owner “interfered with interstate commerce.”

During the instructions, the court reviewed the indictment, and mentioned the allegation that articles “manufactured in various states other than Illinois were purchased and to be purchased.” The court said at another point that the government need not prove that a particular shipment from out of state was obstructed or delayed, and referred to “the depletion of the [re] sources of the business engaged in interstate commerce.”

B. Instruction as to separate consideration of counts.

The district court instructed:

“Now, there are two counts in this indictment, and, as I have told you, each one charges a separate crime. You should consider each one separately. The defendant’s guilt or innocence of the crime charged in one count should not affect your verdict on the other count and if you find the defendant guilty beyond a reasonable doubt of either of the crimes charged in the indictment, then a verdict of guilty should be returned.” (Italics ours.)

Defendant suggests that the italicized portion is open to the construction that if the jury found defendant guilty of only one count, it should return a general verdict of guilty. Such a construction is not a necessary one, and would be inconsistent with the preceding portion of the same sentence. Moreover, the court furnished three forms of verdict, one for a verdict of guilty on both counts, one for not guilty on both, and one for guilty on one (with the number to be inserted) and not guilty on the other. These forms were read and their use explained. The jury could not reasonably have understood the instruction as suggested by defendant.

C. Excuse of juror during deliberations.

Defendant contends that an incident during the jury’s deliberations deprived him of his Sixth Amendment right to a jury trial. After selecting 12 jurors, but prior to the opening of testimony, counsel had signed and filed an agreement stating:

“It is hereby stipulated by and between the parties hereto by their respective attorneys that in case one but not more than two jurors shall be excused from the panel by reason of illness or for any other good cause as determined by the Court, that the trial may proceed before the remaining members of the panel with the same force and effect as if a full panel were present.”

The 12 jurors heard the evidence, received their instructions, and retired to consider their verdict. Sometime during the first evening of deliberations, the marshal received a call from the husband of juror Woodson informing him that Mrs. Woodson’s father was seriously ill and not expected to live. The marshal transmitted this information to the district judge. The judge, without consulting counsel, excused Mrs. Woodson.

Defendant argues that the stipulation was not binding because, although signed by his counsel, there is nothing in the record indicating the defendant himself agreed to it. Rule 23(b), F.R. Cr.P., provides: “Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12.”

Nothing in Rule 23(b) suggests that counsel’s signature on a stipulation for a reduced size of jury does not bind the party he represents if the record fails to show that the party authorized counsel to stipulate. During the progress of a trial, it is ordinarily presumed that an attorney of record has authority to bind the party he represents as to matters of procedure. 7 Am.Jur.2d 120, Attorneys at Law § 121. Although policy considerations may cause courts to forego reliance on that presumption as the matter stipulated rises in stature, the Supreme Court has “squarely rejected the argument that . . . any waiver of constitutional rights [is] ineffective unless deliberately made and expressly approved by the defendant.” United States ex rel. Allum v. Twomey, 484 F.2d 740, 745 (7th Cir. 1973).

Absence of recorded personal expression by defendant of consent to reduction in size of a jury has been held not to be a ground of collateral attack. Horne v. United States, 264 F.2d 40, 41-43 (5th Cir. 1959), cert. denied, 360 U.S. 934, 79 S.Ct. 1460, 3 L.Ed.2d 1549; Williams v. United States, 332 F.2d 36, 38 (7th Cir. 1964), cert. denied, 379 U.S. 976, 85 S.Ct. 672, 13 L.Ed.2d 566 (1965). Agreement by counsel has been held sufficient on direct appeal. Beatty v. United States, 377 F.2d 181, 185 (5th Cir. 1967). Cf. United States v. Vega, 447 F.2d 698, 700 (2d Cir. 1971) where the record also showed that counsel had conferred with his client.

The record before us does not show a colloquy in the presence of defendant at the time the stipulation was signed by his counsel and filed, the first day of trial. It does show a colloquy in open court the morning after the juror had been excused pursuant to the stipulation and while the jury continued to deliberate. The judge announced the facts concerning the excused juror. Defense counsel objected “notwithstanding the stipulation” on the ground he had not been notified. Defendant said nothing. The judge later indicated a plan to let the jury deliberate until about 11 a. m., give a modified Allen instruction, let the jury deliberate until noon, and then discharge it if no verdict had been reached. Defense counsel then said: “My defendant’s and my suggestion, your Honor, just to leave them wait. We would object to any Allen Charge and I will object to them being discharged, your Honor.” Defendant remained silent. We conclude that defendant is not in a position to repudiate his attorney’s authority to agree to reduction in the size of the jury.

Defendant asserts three additional objections to juror Woodson’s being excused. First, he contends that the illness of the juror’s father did not fall within the terms of the stipulation permitting excuse “by reason of illness or for any other good cause as determined by the court.” We think that the district judge acted within the discretion conferred by the stipulation in de-) termining that the event constituted good cause. Cf. Rogers v. United States, 319 F.2d 5, 7 (7th Cir. 1963), cert. denied, 375 U.S. 989, 84 S.Ct. 524, 11 L.Ed.2d 475 (1964) (snowbound juror); United States v. Houlihan, 332 F. 2d 8, 12-13 (2d Cir. 1964), cert. denied, 379 U.S. 828, 85 S.Ct. 56, 13 L.Ed.2d 37 (nurse-juror excused due to illness of patient).

Second, defendant argues that the stipulation only authorized release of a juror during the receipt of evidence, not after the jury retired to deliberate. The stipulation, however, contains no such limitation, and the language of Rule 23(b) permitting stipulation “any time before verdict” clearly requires none.

Finally, defendant argues that the district court should have notified defense counsel before excusing Mrs. Woodson. The second circuit rejected a similar contention in United States v. Houlihan, supra, at 13:

“Although every effort should be made to afford such an opportunity, we do not think that failure to do so [i. e., notify counsel before relieving a juror] in a case such as this presents grounds for reversal. Situations may sometimes arise when a respect for the rights of jurors will require the judge to take immediate action without consulting counsel — e. g., if a juror is taken so ill that he cannot come to court or has a family emergency requiring him to leave during the night or over a weekend.”

Defendant asserts that, had the court consulted his counsel, he would have insisted on verifying the illness of Mrs. Woodson’s father. However, the parties had stipulated that the court would determine what constituted good cause. We think notice was not essential to the exercise of the function described. See United States v. Vega, supra; United States v. Ricks, 155 U.S.App.D.C. 57, 475 F.2d 1326.

D. Denial of motion for new trial on ground of newly discovered evidence.

At trial Kovacevic identified defendant as the man who was in his store in April and June, 1971, and with whom he had the transaction involving the $200 check. On cross-examination, he was asked, among other matters of the man’s appearance, whether he had a moustache. Kovacevic answered “No.” Defendant’s wife, sister-in-law, and barber testified that defendant had a full moustache at the time of the alleged extortion. Defendant produced a photograph in which he appeared with a moustache and which he said was taken in February, 1971.

Defendant’s motion for new trial was supported by the affidavit of Lascaro. Lascaro stated that he was an attorney; that he had appeared in court on June 17, 1971 representing a client arrested by defendant; that defendant was also present and had a moustache.

In denying the motion, the district judge (who, of course, had seen and heard the witnesses) indicated that he regarded the Lascaro testimony as cumulative, and unlikely to change the result since a witness could be mistaken as to a matter like a moustache and still make a correct identification. Two of the propositions which must be established in support of a motion for new trial because of newly discovered evidence are that the evidence would probably produce a different verdict and is not merely cumulative. Grant or denial of the motion is discretionary. United States v. Curran, 465 F.2d 260, 264 (7th Cir. 1972). We find no abuse of discretion here.

The judgment appealed from is affirmed.

SWYGERT, Chief Judge

(dissenting).

I dissent and adopt as the basis for my dissent the opinion of the majority of the division of court which originally heard and decided this appeal. That opinion is reported at 490 F.2d 661 (7th Cir. 1973).

SPRECHER, Circuit Judge

(dissenting).

I dissent on the basis that I believe that the district court abused its discretion under the facts of this case — that is, by trying together a single substantive count and a single perjury count involving receipt of the same $200 check, with each count tracking the other with a double-teaming effect. Whether discretion is abused must be separately decided in each case, but I would find abuse here.

      . The basis for the motion was “[f]he join-der of the two counts in this Indictment would prejudice the Defendant and that his appearance before the Grand Jury investigating the instant cause might lead to an improper conclusion, and would, therefore, confuse and mislead the jury and prejudice the jury against the Defendant.”

      . In a memorandum opinion and order, the district court stated that the counts were properly joined under Rule 8(a), F.R.Cr.P., because “the indictment charging perjury relates to the circumstances alleged in the extortion count.” Regarding discretionary severance, the court noted that the allegation of prejudice was highly speculative; that the government would have “to prove essentially the same facts in two separate trials if a severance were granted. See United States v. Sweig, 316 F.Supp. 1148, 1158 (S.D.N.Y. 1970) ”; and concluded “joinder is not likely to be unfair to the defendant, but rather would put an undue burden on the Government.”

      . 490 F.2d at 663.

      . Compare ABA Standards, Joinder and Severance § 2.2(b), Approved Draft, 1968. The standard for severance of related offenses, where apidieation is made before trial, is whether “it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.” In commentary, it is said: “Whether a severance of related offenses should be granted must remain largely within the discretion of the trial judge upon consideration of the circumstances of the individual case.”

      . In a similar case the Second Circuit has interpreted Sweig as holding both that commonality of proof of the conspiracy and perjury crimes permitted denial of a Rule 14 pretrial motion for separate trials, and that an appellant who fails to renew his motion on the eve of trial, may not raise the claim on appeal. United States v. Carson, 464 F.2d 424, 436 (2d Cir. 1972), cert. denied, 409 U.S. 949, 93 S.Ct. 268, 34 L.Ed.2d 219. Although our present decision is not based on waiver by failure to renew the pretrial motion, ABA Standards, Joinder and Severance, § 2.1(b), Approved Draft, 1968, provides:
      “If a defendant’s pretrial motion for severance was overruled, lie may renew the motion on the same grounds before or at the close of all the evidence. Severance is waived by failure to renew the motion.” See Commentary, pp. 27-28.

      . The government does argue at least the possibility that it could prove (1) as a false exculpatory statement and that if defendant were to present testimony as to reputation, as happened here, the government could inquire whether the witness knew of Count II, and thus make the jurors aware of (2).

      . At trial in a single count, a juror may conceivably, though improperly, give some weight to a belief that a number of grand jurors have already decided the same issue.

      a. The rationale of the panel’s earlier decision in Paoente was rejected. United States v. Isaacs, 493 F.2d 1124, 1159-1160, 1167 (dissenting opinion), 1169 (dissenting opinion on petition for rehearing), 7th Cir. 1974), cert. den. 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974).

      . See United States v. Teemer, 214 F.Supp. 952, 954 (N.D.W.Va. 1963) :
      “The exercise of the [Rule 14] discretion involves consideration balancing possible prejudice to the defendants in the trial of the several offenses in one trial against the inconvenience and expense to the Government, the court and the jurors of holding separate trials where so many factual and legal issues are in common.”

      . 18 U.S.C. § 1951(a) provides penalties for one who “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do. . ”
      Section 1951(b)(3), quoted in the text, infra, defines commerce as used in section 1951 so as to include interstate commerce.

      . See also United States v. Gill, 490 F.2d 233, 236-237 (7th Cir. 1973) cert. denied 417 U.S. 968, 94 S.Ct. 3171, 41 L.Ed.2d 1139 (1974).

      . Cf. Gill, supra, fn. 10, pp. 237-238.


author: PER CURIAM:

text:
    Paulette PAPILSKY, Plaintiff-Appellee, v. Alvin H. BERNDT et al., Defendants-Appellants. Harry LEVINE, Plaintiff-Appellee, v. Robert S. DRISCOLL et al., Defendants-Appellants.
    Nos. 477-482, Dockets 73-2187—73-2190, 73-2506 and 73-2510.
    United States Court of Appeals, Second Circuit.
    Argued March 11, 1974.
    Decided May 24, 1974.
    Certiorari Denied Dec. 9, 1974.
    Abraham L. Pomerantz, New York City (Mordecai Rosenfeld, Daniel W. Krasner and Pomerantz Levy Haudek & Block, New York City, on the brief), for plaintiff-appellee in Nos. 73-2188 and 73-2190.
    Wendell Davis, Jr., New York City (McConnell, Schenermann & Davis, New York City, on the brief), for plaintiff-appellee in Nos. 73-2187 and 73-2189.
    Judson A. Parsons, Jr., New York City (Keith E. McClintock, Jr. and Dewey, Ballantine, Bushby, Palmer & Wood, New York City, on the brief), for defendants-appellants Alvin H. Berndt, Robert S. Driscoll and Lord, Abbett & Co. in both actions.
    James'D. Zirin, New York City (Edward J. Ross and Breed, Abbott & Morgan, New York City, on the brief), for defendant-appellant Affiliated Fund, Inc. in both actions.
    Before MANSFIELD and TIMBERS, Circuit Judges, and DAVIS, Judge.

       Hon. Oscar H. Davis, of the United States Court of Claims, sitting by designation.

   PER CURIAM:

This is the second appeal from an interlocutory order that has come before us during the three year life of this litigation in the district court.

Two years ago we heard, pursuant to 28 U.S.C. § 1292(b) (1970), an appeal by defendants in the Papilsky action, which was commenced in June 1971, from an order of the district court denying their motion for summary judgment on grounds of res judicata based on the dismissal of two prior actions that had been commenced in January 1967 and February 1968. We affirmed the order of Judge Wyatt denying summary judgment. Papilsky v. Berndt, 466 F.2d 251 (2 Cir.), cert. denied, 409 U.S. 1077 (1972).

The instant appeal, as to which a § 1292(b) certification was denied by the district court, seeks to bring up for review an interlocutory order entered on March 16, 1973 in the Southern District of New york by Harold R. Tyler, District Judge, denying motions by defendants in both actions to dismiss the complaints for failure to comply with the particularity requirements of Fed.R. Civ.P. 23.1, or in the alternative to strike certain allegations from the complaints pursuant to Fed.R.Civ.P. 11. We dismiss the appeal for lack of appellate jurisdiction.

The gravamen of defendants’ motions below to dismiss was that the complaints do not allege with particularity the reasons for plaintiffs’ failure to obtain the action they desired from the directors of the Fund or for not making the effort to obtain the desired action from the directors. Defendants argued that the allegations of domination and control of the unaffiliated directors by the minority affiliated directors are insufficiently precise for purposes of Rule 23.1. They also contended that these allegations are without evidentiary basis and sought to establish this on the instant motions by attempting to introduce voluminous documentary evidence attacking the factual basis of the complaints.

In a reasoned opinion, Judge Tyler denied the motions chiefly on the ground that plaintiffs’ allegations that the unaffiliated directors were dominated by a minority of the affiliated directors, coupled with the allegations that all diree-tors had participated or acquiesced in the challenged transactions, were sufficient as a matter of pleading to show the futility of a demand. The judge also refused to consider the evidence offered by defendants to show that the unaffiliated directors were not dominated.

In dismissing this appeal for lack of appellate jurisdiction, we are not aware of, and counsel have not cited us to, any case where federal appellate review of an order denying a motion addressed to the pleadings has been permitted. We believe that our decision in Gottesman v. General Motors Corp., 268 F.2d 194, 196-97 (2 Cir. 1956), refusing to permit an appeal, although certified by the district court pursuant to § 1292(b), from the denial of a motion to dismiss for failure to make a demand upon stockholders, is controlling here.

Appellants place chief reliance on Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), in urging that the interlocutory order in question is appeal-able. Of the three requirements of Cohen that must be satisfied “lest this exception swallow the salutary ‘final judgment’ rule”, Weight Watchers of Philadelphia, Inc. v. Weight Watchers International, Inc., 455 F.2d 770, 773 (2 Cir. 1972), we reject out of hand appellants’ arguments with respect to two: the order here clearly is not one “too important to be denied review”, see Gottesman v. General Motors Corp., supra, 268 F.2d at 196-97; and the delay in obtaining appellate review will not result in irreparable loss, but will simply postpone determination of the question of whether the directors under all the circumstances should have decided whether to bring the actions.

With respect to the collateral right requirement of Cohen, we hold that it would be stretching that doctrine entirely too far to hold that denial of a motion to dismiss for non-compliance with the particularity requirements of Rule 23.1 is appealable. The collateral right claimed to be destroyed, i. e., the right to have the board of directors exercise its independent business judgment on whether to sue before permitting a stockholder to bring suit, is not of sufficient magnitude to permit an interlocutory appeal. In the first place, the right is not of great magnitude for the reason that, if (as might well be anticipated) a majority of the board refuses to sue, plaintiffs presumably would then be permitted to reinstitute their present action. Secondly, if plaintiffs should prevail on the merits, denial of defendants’ motion to dismiss for non-compliance with Rule 23.1 would be merged in the judgment and on appeal the judgment could be set aside on the ground that plaintiffs lack standing because they failed to meet the conditions of Rule 23.1. In essence therefore the order here is not different from the ordinary order denying a defendant’s motion to dismiss or for summary judgment, from which an interlocutory appeal does not lie.

Cohen and its progeny are all distinguishable because they represented denial of collateral rights which would be forever lost unless the orders were immediately reversed. In Cohen, for instance, the defendants, if they ultimately had prevailed on the merits, would have been unable to obtain the security for costs and attorneys’ fees to which they would have been entitled prior to trial. In MacAlister v. Guterma, 263 F.2d 65 (2 Cir. 1968), and in Garber v. Randell, 477 F.2d 711 (2 Cir. 1973), which permitted appeals from the grant or denial of consolidation orders, the rights of the losing parties would have been mooted or destroyed if they had been required to comply with the district court’s decisions.

Finally, to the extent that appellants claim that under Rule 23.1 defendants in a derivative action have a right to a unique proceeding — something more than a motion to dismiss the complaint on its face, but something less than a full-fledged motion for summary judgment — we reject their claim as untenable. The obligation imposed by the second sentence of the Rule is neither so important nor so unique that it calls for unusual procedural mechanisms.

In view of the ground of our decision dismissing the appeal for lack of appellate jurisdiction, of course we do not reach the merits.

Dismissed.

      . We shall assume familiarity with the underlying allegations, particularly in the Papilsky action, as summarized in our prior opinion. 466 F.2d at 253.


text:
    ESTATE of Rollin E. MEYER, Sr., Deceased, et al., Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
    No. 73-1062.
    United States Court of Appeals, Ninth Circuit.
    Aug. 29, 1974.

      Walter G. Schwartz (argued), San Francisco, Cal., for petitioners.
    Richard Farber (argued), Tax Div., U. S. Dept, of Justice, Washington, D. C., for respondent.
   OPINION

Before BARNES and WALLACE, Circuit Judges, and FERGUSON, District Judge.

PER CURIAM:

Messrs. Meyer, father and son, were general partners in a real estate partnership. They exchanged their partnership interests for a second real estate partnership in which the son was a general partner and the father was a limited partner. Both partnerships were involved in owning and renting apartments in the San Francisco area. Each claimed the exchange was of property of like kind and, therefore, nontaxable pursuant to section 1031(a) of the Internal Revenue Code of 1954. The tax court agreed with the son but not the father, resulting in this appeal by the father’s estate. 58 T.C. 311 (1972). We affirm.

We review the decisions of the tax court under the same standards that we review the decisions of a district court:

Subject to review by the Supreme Court on certiorari we have exclusive and final jurisdiction to review the decisions of the Tax Court on appeal “in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury.” On such review, the findings of the Tax Court will not be disturbed unless clear error appears. And the burden is on the taxpayer to show such clear error.

Factor v. Commissioner of Internal Revenue, 281 F.2d 100, 109 (9th Cir. 1960), cert. denied, 364 U.S. 933, 81 S.Ct. 380, 5 L.Ed.2d 365 (1961) (footnotes omitted).

Since there is no dispute over the facts in the present case, we are faced only with the legal question of whether the property was of like kind within the meaning of section 1031(a). Although the statute does not define “like kind” the regulations do:

As used in section 1031(a), the words “like kind” have reference to the nature or character of the property and not to its grade or quality. One kind or class of property may not, under that section, be exchanged for property of a different kind or class.

Treas.Reg. § 1.1031 (a)-l(b). The tax court correctly concluded that a general partnership interest is of a different nature and character than a limited partnership interest. These interests are recognized under California law as different classes. A general partner has a broad spectrum of rights and liabilities while a limited partner is largely shielded from liability and his rights are generally limited to a right to inspect the partnership books, to an accounting, to have the partnership dissolved in certain situations and, under certain circumstances, to withdraw his contribution to the partnership. Cal.Corp.Code §§ 15507, 15510, 15515, 15516 and 15517. He may not actively participate in running the business and his liability is generally limited to the amount of his investment. See Donroy, Ltd. v. United States, 301 F.2d 200, 208 (9th Cir. 1962).

Although the underlying property of both partnerships in this case was real estate, the father’s interest in the second partnership was substantially changed and different from his interest as a general partner in the first partnership. His personal assets were no longer at stake. He was no longer involved in making the day-to-day decisions of the business. He had ceased to be a participant in the business and had become primarily an investor, dependent upon the efforts of others to make a profit. The different character of his ownership interest made it property of a different class rather than property of a different grade. We hold that an exchange of a general partnership for a limited partnership is not a like kind exchange under section 1031(a).

Affirmed.

       Honorable Warren J. Ferguson, United States District Judge, Central District of California, sitting by designation.


text:
    ISI CORPORATION, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 73-2397.
    United States Court of Appeals, Ninth Circuit.
    Aug. 29, 1974.
    Marvin D. Morgenstein (argued) of Steinhart, Goldberg, Feigenbaum & Ladar, San Francisco, Cal., for plaintiff-appellant.
    Richard Farber, Atty. (argued) Tax Div., U. S. Dept, of Justice, Washington, D. C., for defendant-appellee.
   OPINION

Before KILKENNY and WALLACE, Circuit Judges, and SOLOMON, District Judge.

PER CURIAM:

ISI Corporation appeals from a judgment based upon a jury verdict denying a refund of taxes for the years 1962 through 1965. We affirm.

ISI contends (1) that there was insufficient evidence to substantiate the verdict and (2) that the trial court erred in denying its motion to compel answers to certain questions asked in a pretrial discovery deposition. We are satisfied that there was substantial evidence upon which the jury could render a verdict for the government. Our concern is with the discovery order.

Internal Revenue agent Barron, who was assigned to audit the ISI tax returns, conducted a lengthy investigation which resulted in a deficiency notice being issued to ISI more than eight years after ISI had filed its tax return reporting the transaction in issue. During a pretrial deposition, Barron, upon the advice of the attorney representing the government, refused to answer certain questions. ISI moved to have the court compel answers and contends that the refusal of the district court to do so, other than on two questions, prejudiced it in preparation for trial and resulted in reversible error.

Relying on other district court opinions, see, e. g., Simons-Eastern Co. v. United States, 55 F.R.D. 88 (N.D.Ga. 1972), the district judge held that “the opinions, conclusions and reasoning of government officials are not subject to discovery.” We accept this statement as a correct rule of law, but the district court misapplied the rule to the facts before it.

Of the 29 disputed questions, the district court ordered Barron to answer only two. Some of the remaining questions would have revealed the opinions, conclusions and reasoning of the government and were not discoverable. Although the answers to certain other questions would not necessarily have revealed the opinions, conclusions and reasoning of the government and although we might have required Barron to answer them had we been in the position of the trial court, we fail to see how the denial of requiring Barron to answer these questions was so prejudicial to ISI in its trial preparation that reversal is required. The “broad discretion” vested in the trial court in discovery matters, coupled with the harmless error doctrine, bars us from reversing the trial court’s decision except in unusual cases. 8 C. Wright & A. Miller, Federal Practice and Procedure § 2006, at 35 (1970). While the answers may have aided ISI in some indeterminate way, the refusal to order the answers, if it was error, was harmless.

Affirmed.

       Honorable GUS J. SOLOMON, United States District Judge, District of Oregon, sitting by designation.

      . The questions that the district court ordered Barron to answer were :
      Did you hire anybody to appraise the personal property ISI acquired from Mr. Miller?
      Did you obtain a written report from any appraiser concerning the appraised value of the property that was purchased from Miller by ISI?

      . For example, one of the questions asked by ISI was:
      tVhat did the dots mean to you when you wrote them down, Mr. Barron?

      . For example:
      At any time did you review the contract between ISI and Miller for the sale of the personal property, the leasehold and the investor records?
      Did you have any meetings with anyone in the Internal Revenue Service in connection with your audit of the ISI tax returns?
      Did you make any independent determination of your own whether the personal property of $300,000 as allocated in the agreement, was in fact worth $300,000 at the date of the purchase?
      Did you examine the leasehold as evidenced by the written lease that was purchased by ISI from Miller in connection with your audit?


author: PER CURIAM :

text:
    Frank J. CRIMMINS, Plaintiff-Appellant, v. AMERICAN STOCK EXCHANGE, INC., Defendant-Appellee.
    No. 26, Docket 74-1289.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 9, 1974.
    Decided Oct. 8, 1974.
    Donald Stuart Bab, New York City (Seymour Swidler, William J. Burke and Spear & Hill, New York City, on the brief), for plaintiff-appellant.
    John J. Loflin, New York City (Lord, Day & Lord, New York City, on the brief), for defendant-appellee.
    Before SMITH, TIMBERS and GURFEIN, Circuit Judges.

       At the time of oral argument, Judge Gur-fein was a District Judge of the United States District Court for the Southern District of New York, sitting by designation.

   PER CURIAM :

Frank J. Crimmins, a former registered representative of Walston & Co., Inc., which in turn was a member firm of the American Stock Exchange, appeals from a judgment entered December 18, 1973 in the Southern District of New York, Morris E. Lasker, District Judge, denying Crimmins’ motion for summary judgment, granting the Exchange’s cross-motion for summary judgment and dismissing Crimmins’ action to vacate the determination by a disciplinary panel of the American Stock Exchange, acting pursuant to Section 6 of the Securities Exchange Act of 1934, 15 U.S.C. § 78f (1970), which found Crimmins guilty of violations of the Exchange rules in connection with trading in the stock of Four Seasons Nursing Centers of America, Inc., and suspended him for two years.

We have carefully considered each of Crimmins’ claims of error and find them to be without merit. We affirm on the comprehensive, well-reasoned opinion of Judge Lasker below. 368 F.Supp. 270 (S.D.N.Y.1973).

Affirmed.


author: PER CURIAM.

text:
    The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellants, v. BENCHCRAFT, INC., et al., Appellees.
    No. 74-1315.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 13, 1974.
    Decided Sept. 30, 1974.
    Rehearing Denied Oct. 16, 1974.
    Sam D. Parker, Jack W. R. Headley, Joseph E. Stevens, Jr., and Daniel M. Dibble, Kansas City, Mo., for appellants.
    George L. Gisler, Lex A. Passman, and Howard D. Lay, Kansas City, Mo., for appellees.
    Before VOGEL, Senior Circuit Judge, and ROSS and WEBSTER, Circuit Judges.
   PER CURIAM.

Summary judgment in favor of Benchcraft, Inc., Delivery, Inc. and Capitol Truck Lines, Inc. is affirmed on the basis of the opinion of the District Court. (Atchison, Topeka & Santa Fe Railway Co. v. Benchcraft, Inc., 381 F. Supp. 603 (W.D.Mo.1974)). Judge Collinson has accurately stated the applicable law and has properly applied the law to the facts. No purpose would be served in attempting to elaborate on his well considered opinion.

Affirmed.


text:
    Gregory L. PORTER, Appellant, v. GUAM PUBLICATIONS, INC., et al., Appellees.

    No. 72-1514.
    United States Court of Appeals, Ninth Circuit.
    Sept. 9, 1974.
    Douglas F. Cushnie (argued), Arriola, Bohn, Cushnie & Stevens, Agana, Guam, for appellant.
    Thomas J. Nolan (argued), Barrett, Ferentz, Bramhall & Klemm, Agana, Guam, for appellees.
    Before CHAMBERS, ELY and WALLACE, Circuit Judges.

      . The names of two others, originally designated as appellees, have, by this court’s Order of November 14, 1972, been removed from the caption.

   OPINION

On Remand

PER CURIAM:

Originally, our court affirmed the judgment of the District Court in the subject cause. Porter v. Guam Publications, Inc., et al., 475 F.2d 744 (9th Cir. 1973). Subsequently, the Supreme Court granted the appellant’s petition for cer-tiorari, and our judgment has been reversed. Porter v. Guam Publications, Inc., et al., 418 U.S. 908, 94 S.Ct. 3200, 41 L.Ed.2d 1155 (1974). The Supreme Court’s mandate, which we have now received, recites that the cause is remanded to us “for further consideration in light of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).”

We think that the District Court should be allowed the first opportunity for the further consideration required by the Supreme Court. Accordingly, the case is remanded to the District Court. It should vacate the judgment and made a determination in accordance with its appraisal of Gertz v. Robert Welch, Inc., supra.

So ordered.


text:
    Edward D. WEIL, Petitioner, v. C. Marshall DANN, Commissioner of Patents, and Charles D. Fritz, et al., Respondents.
    Special Patent Docket No. 184.
    United States Court of Customs and Patent Appeals.
    Oct. 10, 1974.
    Jerry D. Voight, Washington, D.C. (Finnegan, Henderson, Farabow & Garrett, Washington, D. C.), attorneys of record, for petitioner.
    Joseph F. Nakamura, Washington, D. C., for the Commissioner of Patents, C. Marshall Dann.
    Stanley H. Cohen, Philadelphia, Pa., (Caesar, Rivise, Bernstein & Cohen, Philadelphia, Pa.), for Fritz and others.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   PER CURIAM.

Petitioner seeks a writ of mandamus directing the Commissioner of Patents to reverse the decision of the examiner denying Weil’s motion to shift the burden of proof in interference No. 97,772, which on petition the Commissioner refused to disturb. The adverse party in interference, Fritz et al., joined the Commissioner’s opposition to the petition here and filed a motion for summary denial thereof.

Petitioner alleges an erroneous application of the law in the decision of the examiner. On authority of In re Schmidt, 48 CCPA 1140, 293 F.2d 274 (1961), the examiner accorded Fritz et al. the benefit of the filing date of an earlier application after Cooke’s name was added as a co-inventor under 37 CFR 1.45(c) to those of Fritz and Evans.

We decline to consider the merits of the examiner’s decision and express no opinion thereon. The issue raised by petitioner is ancillary to priority and is subject to consideration by the Board of Patent Interferences under 37 CFR 1.-258(b). Petitioner would bypass such consideration, bringing the interlocutory question directly to us and avoiding the normal procedure wherein judicial review is not available until after the board has decided the case.

We have jurisdiction to issue a writ of mandamus at this juncture when justice necessitates that extraordinary step. Duffy v. Tegtmeyer, 489 F.2d 745 (CCPA 1974); Loshbough v. Allen, 56 CCPA 913, 404 F.2d 1400 (1969). However, mandamus must not be abused by being made the vehicle for review of routine interlocutory orders. Nor is mandamus appropriate when effective relief is available on appeal. Cmax, Inc. v. Hall, 290 F.2d 736 (9th Cir. 1961); Albert v. U. S. Dist. Ct. for W. Dist. of Mich., 283 F.2d 61 (6th Cir. 1960), cert. denied, 365 U.S. 828, 81 S.Ct. 713, 5 L.Ed.2d 706 (1961).

Petitioner must bear the burden of proof as junior party even though it may be finally found that he was entitled to senior party status. The necessity of orderly procedure and the husbanding of judicial time and effort often require litigants to undergo cos£s and inconvenience which might be avoided by interlocutory review. Roche v. Evaporated Milk Ass’n., 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185 (1943), Evans Electrical Const. Co. v. McManus, 338 F.2d 952 (8th Cir. 1964), Gulf Research & Development Co. v. Harrison, 185 F.2d 457 (9th Cir. 1950).

Petitioner has not shown that issuance of the writ would foster effective appellate review in this case nor has he convinced us that the Commissioner abused his discretion in refusing, on petition, to disturb the examiner’s decision denying the motion to shift the burden of proof.

We find that the issuance of a writ is neither necessary nor appropriate in the matter before us. See Wembley, Inc. v. Commissioner of Patents, 235 F.Supp. 704 (D.D.C.1964), aff’d, 352 F.2d 941 (1965); Duffy v. Tegtmeyer, supra; Loshbough v. Allen, supra. Accordingly, the petition for writ of mandamus is denied and the motion for summary denial of the petition is granted.


text:
    GLENSIDE STEEL COMPANY and Gerry Schmitt and Company, Appellants, v. The UNITED STATES, Appellee.
    Customs Appeal No. 74-18.
    United States Court of Customs and Patent Appeals.
    Oct. 17, 1974.
    David O. -Elliott, New York City (Barnes, Richardson & Colburn, New York City), attys. of record, for appellants. Irving Levine and Hadley S. King, New York City, of counsel.

      Carla A. Hills, Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, James Caffentzis and Robert Masters, New York City, for United States.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   PER CURIAM.

This appeal is from the judgment of the United States Customs Court, 71 Cust.Ct. 23, C.D. 4466, 364 F.Supp. 1398 (1973). The court held that plaintiffs (appellants here) had failed to overcome the presumption of correctness attaching to the appraisement of the salvaged steel, and that plaintiffs had failed to prove that their claimed values were correct.

After a thorough consideration of the record, of the briefs, and of the oral arguments, we have concluded that we are in full agreement with the opinion of the Customs Court, and we adopt it as our own. The judgment is affirmed.