author: HILL, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Eddie L. MacCLAIN, Defendant-Appellant.
    No. 73-1851.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted July 9, 1974.
    Decided Aug. 16, 1974.
    Rehearing Denied Sept. 23, 1974.

      Donald S. Molen, Denver, Colo., for defendant-appellant.
    Richard Slivka, Asst. U. S. Atty. (James L. Treece, U. S. Atty., on the brief), for plaintiff-appellee.
    Before HILL, MOORE  and DOYLE, United States Circuit Judges.

       Honorable Leonard P. Moore, Second Circuit, sitting by designation.

   HILL, Circuit Judge.

Eddie MacClain was indicted by a federal grand jury in Colorado on five counts of securities fraud and mail fraud, in violation of 15 U.S.C. §§ 77q(a) and 77x, and of 18 U.S.C. §§ 2 and 1341. He subsequently was convicted by a jury on all counts.

The following evidence was adduced at trial. In the summer of 1966, MacClain and Kenneth Cook decided to establish a mail order business in Denver, Colorado. Neither one had the necessary financial resources for the venture, and so a third person was persuaded to put up $10,000 for initial operating capital. The business became operational that fall and was incorporated under the name of Cherry Creek International, Ltd. (later changed to House of Knowledge, Inc.). Cook became its president and MacClain its secretary-treasurer. Each was to receive a monthly salary of $1,000. e

Corporate efforts were directed toward the publication and sale of an instruction manual for operating a mail order business, the sale of do-it-yourself and self-improvement books in model bookstores, and an attempt to franchise bookstores. The business, however, proved to be less than successful. Fewer than 100 copies of the mail order book were sold, and the do-it-yourself and self-improvement books were just as unpopular. In fact, the corporation realized only $814 from the sale of books. The corporation’s model bookstores, all located in Denver, either lasted only a short while or never became fully operational due to lack of funds. Finally, all attempts to franchise its bookstores were fruitless.

The corporation never operated at a profit and finally ceased doing business in the summer of 1970. Its only assets at that time were various records, a claimed copyright on its mail order book, and $10.70 in the corporate checking account.

The corporation’s income was derived primarily from the sale of its stock. Stock sales amounted to over $160,000. Although the book value of the stock never exceeded $2.20 per share, it was sold at prices ranging from ten to fifty dollars per share. The record discloses that MacClain had the primary responsibility for selling stock. He was aided in his solicitation efforts by Albert So-bie, an insurance salesman who introduced MacClain to his clients. In return, Sobie received a 20 percent commission on the sales.

Five stockholders testified at trial about their course of dealings with MacClain. His approach was essentially the same toward all of them. Accompanied by Sobie, he would visit a potential investor’s home and explain his corporation’s operations. Although he was aware that the corporation was in poor financial health and that its product was not selling, he did not tell this to potential investors. Instead, he described the corporation’s activities in very positive terms, to say the least. The corporation was doing well, he said, and planned to open (up to 100) new bookstores. Proceeds from the sales of stock were to be used for this purpose. Phoenix, Dallas and Atlanta were mentioned as possible locations. New books were to be purchased at very low prices and sold at a big profit. Although denied by MacClain at trial, stockholders said he informed them that he was an attorney and an accountant (he was not), and that the corporation had met all state and federal securities requirements.

Cook testified, at trial, that the articles of incorporation authorized 25,000 shares of stock and that there was never a shortage of available stock. MacClain, however, told potential investors there was a limitation on the number of shares available and the stock was selling fast. Purchases should be made immediately.

MacClain also described the expected return on the investment in' glowing terms. Dividends would be paid quarterly and would begin in several months. One could expect, he told various investors, that the first dividend would almost pay for the price of the stock, that the investment would make a lot of money, and that the first year’s dividends would be around $10,000. Approximately fifty-seven persons invested in the corporation. Not one of them received any dividends.

The Securities & Exchange Commission (SEC) commenced an investigation into the corporation’s activities in January, 1970. A grand jury subsequently returned a five count indictment against MacClain on May 4, 1973. The indictment alleged, inter alia, that MacClain employed a scheme, device and artifice to fraudulently obtain money and property by means of untrue statements of material fact and omissions of material fact; that the corporation was merely a facade to create the appearance of a legitimate business concern; that funds obtained from investors were converted and used to pay finders’ fees and salaries, that MacClain, as part of a scheme to defraud, distributed material through the mails containing misleading statements about the corporation; and that MacClain had knowingly made false and misleading statements to prospective investors.

MacClain was tried before a jury in the United States District Court for the District of Colorado and was convicted on all five counts.

On appeal, MacClain first argues the trial court erred in denying his pre-trial motion to dismiss because pre-indictment delay violated his rights to due process and a speedy trial under the Fifth and Sixth Amendments to the United States Constitution.

The government’s investigation was commenced on January 19, 1970, and MacClain was indicted 39 months later on May 4, 1973. He argues that because of this delay correspondence, records and files have been lost or misplaced, and that witnesses’ memories have dimmed. He also indicates that further investigation into the matter may show the delay was purposefully designed to gain a tactical advantage.

The argument is without merit. A defendant’s rights under the Fifth Amendment’s due process clause are not violated in the absence of a showing that actual prejudice has resulted from the pre-indictment delay' and that the delay was purposefully designed to gain some tactical advantage or to harass the defendant. United States v. Beitscher, 467 F.2d 269 (10th Cir. 1972). MacClain’s allegations in this regard are unsupported. The record does not disclose the loss to him of any exculpatory evidence or that the government delayed to secure a tactical advantage. All MacClain can point to is the length of time, which is not unreasonable in view of the fact that a complex mail fraud/seeurities fraud case such as this calls for extensive and careful preparation and organization. See, e. g., United States v. MacKay, 491 F.2d 616 (10th Cir. 1973).

Nor is the Sixth Amendment’s speedy trial guarantee available to MacClain. It is applicable only after a defendant has been accused, United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), which in the instant case did not occur until Mac-Clain was indicted. We are convinced that he had a fair trial and was deprived of no Fifth or Sixth Amendment rights.

MacClain next contends the evidence does not support a conviction under 15 U.S.C. § 77q(a) and 18 U.S.C. § 1341 because the government failed to prove that any statements or representations he made were false or misleading. In deciding this issue we must view the evidence presented in the light most favorable to the government. United States v. Twilligear, 460 F.2d 79 (10th Cir. 1970).

The record indicates that some of the statements MacClain made to prospective investors were knowingly false. Stockholders testified he said he was an accountant and a lawyer, when he was neither. And although the corporation was not registered with the SEC, he said it had met all federal and state securities laws. He also stated that the corporation was doing well when in fact he knew that it had never operated profitably. Furthermore, he stated that proceeds from the sale of stock were to be used to open up new bookstores. The record discloses, however, that almost 60 percent of these funds were used to pay salaries, commissions and expenses. Mae-Clain said he had borrowed money to invest in the corporation, when he had not. Finally, he told prospective investors there was a limitation on the amount of stock available and that only a “few shares” or a “little dab” was left. Yet Cook testified that 25,000 shares were authorized and there never was a shortage of stock.

It also appears that MacClain neglected to inform potential investors of the corporation’s true financial status. They were not told that the corporation was operating at a loss, that it did not have funds to stock its bookstores, that the books were not selling, or that a franchise had never been successfully sold. The statements he did make, however, were obviously misleading when considered in the light of the corporation’s true status. MacClain said the stock was selling fast and needed to be purchased immediately. He also said that 100 new bookstores were to be opened and that stock dividends were to be paid quarterly. He told one potential investor that the first dividend would almost pay for the price of the stock, and that the first year’s return should be enough to pay for a vacation. Yet another potential investor was told that the first year’s dividends would be approximately $10,000. In October, 1968, he told one investor that stock dividends would begin in April, 1969, and yet in June, 1969, he told another investor that dividends would not begin for at least one year.

The record thus discloses that some of the statements MacClain made were knowingly false. The inescapable conclusion as to the remaining statements is that he heedlessly and recklessly made them in the face of danger signals indicating the corporation’s financial condition did not warrant such positive representations. We believe that a sufficient quantum of evidence exists by which the jury could find that MacClain made false and misleading statements.

Nevertheless, MacClain denies making these statements and argues that the investor-witnesses lacked credibility. We are not persuaded by this assertion. Evaluating the credibility of witnesses is a matter for the jury and not a function of an appellate court. United States v. Brumley, 466 F.2d 911 (10th Cir. 1972), cert. denied, 412 U.S. 929, 93 S.Ct. 2755, 37 L.Ed.2d 156.

MacClain’s third argument is that the government failed to prove, as required by 18 U.S.C. § 1341, that his use of the mails was for the purpose of executing a scheme. Count V of the indictment is the only count alleging a violation of § 1341. It alleges, inter alia, that MacClain mailed a stock certificate to Mr. and Mrs. O. B. Shawcroft on November 8, 1968, as part of a scheme to defraud.

The following evidence was introduced at trial concerning the allegations of this count. Mrs. Shawcroft testified that MacClain visited her home on November 7, 1968, informed her of his corporation’s operations, and asked if she would be interested in buying some stock. Shawcroft replied that she did not have the money but that she did have some insurance policies. MacClain explained that she could draw money on the policies and told her how much she could get on each one. She agreed to buy 100 shares of stock, gave MacClain a personal check, and said the check was not good and that he would have to hold it for a while. MacClain agreed and gave her a receipt. The following day he mailed her a certificate representing 100 shares of stock, and thereafter returned to Shawcroft’s home^to exchange the original check for anothef.

Relying upon United States v. Lynn, 461 F.2d 759 (10th Cir. 1972), MacClain contends his incidental utilization of the mails did not meet the requirements of § 1341 because the transaction already was fully consummated. We believe Lynn is inapplicable here. It involved a BankAmericard credit card, allegedly stolen from the mails, and used to purchase items from retail merchants. The government contended § 1341 had been violated because the mails were subsequently utilized to return the credit card sales drafts to BankAmericard. This Court held § 1341 was inapplicable because the allegedly fraudulent transaction had been completed upon receipt of the purchased items.

In Lynn the mailings (sales drafts) were directed toward a third party (BankAmericard) and were not an integral part of the transaction. In fact, a defendant in such a case probably would prefer to have the credit card sales drafts misplaced or lost by the retail merchants and never mailed at all.

In the instant case, however, the mailing played a significant part in enabling MacClain to acquire and maintain dominion over the stock proceeds. To be sure, he had obtained Shawcroft’s check before he mailed the stock certificate. But Shawcroft did not have the necessary funds in her cheeking account to pay the check. Even if sufficient funds did exist she could order the bank to stop payment on the check if she suspected foul play. The subsequent mailing was necessary to lull her into a false sense of security, postpone any possible inquiries or complaints to the authorities, and therefore make the transaction less suspect than if no mailing had taken place. See, e. g., United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974); United States v. Sampson, 371 U.S. 75, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962); Beasley v. United States, 327 F.2d 566 (10th Cir. 1964), cert. denied, 377 U.S. 944, 84 S.Ct. 1351, 12 L.Ed.2d 307. We conclude that ample evidence exists to prove that MacClain used the mails for the purpose of executing a scheme.

MacClain also raises a number of objections regarding the admissibility of evidence and various instructions.

First, MacClain argues the trial court committed! prejudicial error by admitting into evidence, over objection, Shawcroft’s testimony that she borrowed money on her insurance policies to purchase stock. He relies on Getchell v. United States, 282 F.2d 681 (5th Cir. 1960), in support of this contention. Getchell involved a mail fraud prosecution. During the trial an investor-witness volunteered testimony that another person had borrowed money on an insurance policy for investment purposes, in an attempt to prejudice the jury. The appellate court reversed the conviction on the grounds, inter alia, that the cumulative effect of all the uncorrected trial errors prejudicially influenced the jury.

That is not the situation now before us. Here, the testimony regarding the insurance policy does not appear to have been designed to prejudice the jury or elicit its sympathy. Nor were there any uncorrected evidentiary rulings which, together with the one in issue, could cumulatively amount to error. The testimony was probative of MacClain’s scheme and intent to defraud, and was not prejudicial.

The trial court also erred, it is asserted, by giving certain instructions which had a prejudicial effect and by failing to give a specific instruction on 18 U.S.C. § 2. Our search of the record does not disclose that MacClain either requested a specific instruction regarding § 2 or that he objected to the instructions that were given. He therefore is barred from raising any such arguments under Rule 30, F.R.Crim.P. That rule states, in part:

No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. See also, United States v. Wheeler, 444 F.2d 385 (10th Cir. 1971); Lucero v. United States, 311 F.2d 457 (10th Cir. 1962), cert. denied, 372 U.S. 936, 83 S.Ct. 883, 9 L.Ed.2d 767.

Finally, MacClain contends his rights have been violated under the Eighth Amendment to the United States Constitution. He asserts his pre-indictment delay constituted an unreasonable and oppressive period of anxiety and therefore amounted to cruel and unusual punishment, and that his 4% year prison sentence for commission of a “white collar crime” also constituted cruel and unusual punishment. We do not agree.

As regards the pre-indictment delay, MacClain’s allegation is unsupported. Surely, every person faced with the possibility of criminal charges being filed against him has anxieties. But this does not approach the extreme type of conditions that must be established to show an Eighth Amendment violation. Moreover, that amendment’s purpose is not to require that criminal prosecutions be filed within a certain length of time. Such is the purpose of. the applicable statute of limitations.

MacClain was sentenced to 41/2 years imprisonment as to Count I, and was granted probation as to the remaining four counts. He concedes that the length of the sentence was statutorily authorized. See 15 U.S.C. § 77x and 18 U.S.C. § 4202. Nevertheless', he argues the sentence is excessive for a 65 year old man who commits a white collar crime “which merely goes to the degree of economic losses to individuals in society.”

A sentence within the statutory limits is not cruel and unusual punishment. Page v. United States, 462 F.2d 932 (3rd Cir. 1972). Absent a showing of illegality or abuse of discretion, such a sentence will hot be disturbed on appeal. See Cooper v. United States, 403 F.2d 71 (10th Cir. 1968); Smith v. United States, 273 F.2d 462 (10th Cir. 1959), cert. denied, 363 U.S. 846, 80 S.Ct. 1619, 4 L.Ed.2d 1729. The record in this case reveals neither an abuse of discretion nor any illegality in the manner or length of sentence.

The conviction is affirmed in all respects.

      . On March 31, 1969, its accumulated loss exceeded $91,000. A staff accountant for the Securities & Exchange Commission testified, at trial, that this loss increased during the remainder of the corporation’s existence.

      . Cook testified that MacClain’s other duties included: keeping the corporate records; keeping and preparing the stock certificates; preparing stockholders’ reports; and preparing correspondence.

      . 15 U.S.C. § 77q(a) provides:
      (a) It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly—
      (1) to employ any device, scheme, or artifice to defraud, or
      (2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
      (3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.

      . 18 U.S.C. § 1341 provides :
      Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated as held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.

      . “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.Const. Amend. VIII.


source: Caselaw Access Project

author: EDWARDS, Circuit Judge.

license: Public Domain

text:
    Dorothy FRANKLIN, Plaintiff-Appellant, v. TROXEL MANUFACTURING COMPANY, Defendant-Appellee.
    No. 73-2055.
    United States Court of Appeals, Sixth Circuit.
    Argued April 5, 1974.
    Decided Aug. 28, 1974.

      William E. Caldwell, Memphis, Tenn., for plaintiff-appellant; Louis R. Lucas, Elijah Noel, Jr., Ratner, Sugarmon & Lucas, Memphis, Tenn., Jack Greenberg, Johnny J. Butler, New York City, on briefs.
    Alexander W. Wellford, Jr., Memphis, Tenn., for defendant-appellee; Fraser Humphreys, Memphis, Tenn., on briefs.
    Before WEICK, EDWARDS and MILLER, Circuit Judges.
   EDWARDS, Circuit Judge.

After a trial beginning March 9, 1972, the District Court for the Western District of Tennessee, Western Division, dismissed this case involving a complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1970), against alleged racial discrimination in employment. We imply no criticism of the conduct of the trial (nor necessarily of the District Judge’s decision therein) as we remand this case for reconsideration in the light of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In May of 1973, (more than a year after the trial and decision of our instant case) Justice Powell, for a unanimous United States Supreme Court, laid down a new and historic three-step procedure for the determination of racial employment discrimination cases under Title VII.

Step I. Justice Powell held that initially the complainant was required to carry the burden of proving a prima facie case:

“The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. McDonnell Douglas Corp. v.

Step II. He then recognized that the burden shifted to the defendant “to articulate some legitimate, nondiscriminatory reason” for refusal to hire:

“The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the respondent’s rejection. We need not attempt in the instant case to detail every matter which fairly could be recognized as a reasonable basis for a refusal to hire. Here petitioner has assigned respondent’s participation in unlawful conduct against it as the cause for his rejection. We think that this suffices to discharge petitioner’s burden of proof at this stage and to meet respondent’s prima facie case of discrimination.
“The court of Appeals intimated, however, that petitioner’s stated reason for refusing to rehire respondent was a ‘subjective’ rather than objective criterion which *carr[ies] little weight in rebutting charges of discrimination,’ [8 Cir.], 463 F.2d [337,] at 352.
-* * * * * *
Regardless of whether this was the intended import of the opinion, we think the court below seriously underestimated the rebuttal weight to which petitioner’s reasons were entitled. Respondent admittedly had taken part in a carefully planned ‘stall-in,’ designed to tie up access and egress to petitioner’s plant at a peak traffic hour. Nothing in Title VII compels an employer to absolve and rehire one who has engaged in such deliberate, unlawful activity against it.” Id. at 802-803, 93 S.Ct. at 1825. (Footnote omitted.)

Step III. The Court then recognized that even an otherwise valid reason might be used as a pretext and remanded for claimant to have the opportunity to prove such facts:

“Petitioner’s reason for rejection thus suffices to meet the prima facie case, but the inquiry must not end here. While Title VII does not, without more, compel rehiring of respondent, neither does it permit petitioner to use respondent’s conduct as a pretext for the sort of discrimination prohibited by § 703(a)(1). On remand, respondent must, as the Court of Appeals recognized, be afforded a fair opportunity to' show that petitioner’s stated reason for respondent’s rejection was in fact pretextual. Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the ‘stall-in’ were nevertheless retained or rehired. Petitioner may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.
“Other evidence that may be relevant to any showing of pretextuality includes facts as to the petitioner’s treatment of respondent during his prior term of employment, petitioner’s reaction, if any, to respondent’s legitimate civil rights activities, and petitioner’s general policy and practice with respect to minority employment. On the latter point, statistics as to petitioner’s employment policy and practice may be helpful to a determination of whether petitioner’s refusal to rehire respondent in this case conformed to a general pattern of discrimination against blacks.” Id. at 804-805, 93 S.Ct. at 1825. (Footnote omitted.)

Our instant case has a background much more deeply rooted in historic race discrimination than the McDonnell Douglas case. It also involves a plaintiff who (whether or not she is ultimately held to have been refused a job for racially discriminatory reasons) is obviously far less vulnerable than was claimant Green in the McDonnell Douglas case.

This case originated in Fayette County, Tennessee. This county has produced much civil rights litigation. Sixty-five per cent of its population is black and it has been dominated by the 35% minority until very recently. This court has much prior experience with civil rights cases from Fayette County. See e.g., McFerren v. Fayette County Board Education, 455 F.2d 199 (6th Cir.), cert. denied, 407 U.S. 934, 92 S.Ct. 2461, 32 L.Ed.2d 817 (1972); United States v. Beaty, 288 F.2d 653 (6th Cir. 1961).

The plaintiff and her husband are longtime civil rights activists. (Among other activities, Floyd Franklin engaged in pressuring defendant Troxel Manufacturing Co. to hire blacks.) Troxel had moved to Moscow, Tennessee, in Fayette County from Ohio in 1961. The record makes clear that prior to Title VII Trox-el did not hire blacks as production workers either in Ohio or Tennessee. In 1965 plaintiff filed an application for employment with defendant. Neither she nor any other blacks in the county had ever been employed in manufacturing production work. Troxel was in fact the first manufacturing company ever to locate in the county. On July 21, 1965 (after the effective date of Title VII) appellant was refused employment and subsequently on inquiry was refused any reason as to why she was not employed.

Defendant’s testimony at the trial of this case before the District Judge indicated that defendant’s personnel manager, after receiving plaintiff’s application, called a white mail carrier upon whom they had been relying for character references and asked him about Mrs. Franklin. The mail carrier said he didn’t know her but also said that her father-in-law had said Mrs. Franklin didn’t agree with him (the father-in-law) about hardly anything and didn’t get along with people too well. The mail carrier suggested the personnel manager call the father-in-law. This, however, was not done and plaintiff was not hired. Subsequently Troxel did hire numerous black employees, including some of appellant’s female relatives.

After a careful review of the facts provided by this record, we believe that as of July 21, 1965, appellant established a prima facie case of discriminatory refusal to hire under the standard just quoted from McDonnell Douglas, supra, (Step I). The District Judge’s opinion (refusing relief on the rationale of Troxel’s stated reason for refusing to hire) was not, of course, written in the light of the standards subsequently laid down in McDonnell Douglas, supra — particularly Step II and Step III, as outlined above.

We therefore vacate the judgment and remand the case for reconsideration in the light of McDonnell Douglas, supra, and such further proceedings as the District Court may think necessary to give adequate consideration to the provisions of Steps II and III therein.

      “13. The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from complainant in this case is not necessarily applicable in every respect to differing factual situations.” Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).


author: FAIRCHILD, Circuit Judge.

text:
    Harry MUELLER, Petitioner-Appellant in 73-1918, Plaintiff-Appellant in 73-1917, v. Robert TURCOTT et al., Respondents-Appellees in 73-1918, Defendants-Appellees in 73-1917.
    Nos. 73-1918, 73-1917.
    United States Court of Appeals, Seventh Circuit.
    Argued April 10, 1974.
    Decided Aug. 19, 1974.

      Peter C. Karegeannes, Milwaukee, Wis., for appellant.
    Robert W. Warren, Atty. Gen., James Petersen, Asst. Atty. Gen., Madison, Wis., for appellees.
    Before FAIRCHILD, PELL and STEVENS, Circuit Judges.
   FAIRCHILD, Circuit Judge.

Appellant Harry Mueller brings these appeals from a judgment denying his petition for a writ of habeas corpus and a judgment dismissing his civil action under 42 U.S.C. § 1983. Since the two actions are based upon the same factual allegations and present the same legal issues, with the exception of the request for damages under the § 1983 action, the appeals have been considered together.

Appellant Mueller is an inmate at the Wisconsin State Prison at Waupun, a maximum security institution for adult male offenders. Appellees Turcott and Gray are, respectively, the Resident Physician and the Warden at Waupun, and Appellee Schmidt is Secretary of the Department of Health and Social Services in which capacity he has responsibility for the state prison system.

This dispute arose from an attempt by Mueller in October, 1972 to be transferred to the Wisconsin Correctional Institution at Fox Lake in order to obtain vocational training in electronics. Such training is unavailable at Waupun. Mueller suffers from severe epileptic seizures and is continually under heavy medication, but Dr. Turcott expressed no objection to the transfer and the prison classification committee recommended it, The committee at the Madison office, however, reversed the decision.

On November 16, 1972, shortly after the denial of the transfer, Mueller filed his pro se § 1983 complaint seeking damages and injunctive relief. He claimed in substance that because of his frequent seizures his living conditions at the prison subjected him to cruel and unusual punishment, and that the denial of the transfer was arbitrary, capricious, and discriminatory. He averred that the stated ground for the denial was that the correctional institution could not provide him with medical facilities and that this criterion had not been applied to other inmates suffering from diseases. Appellees answered, asserting that it had been determined that Mueller’s “medical condition was such as to make him an inappropriate person for a transfer.”

Mueller also sought habeas in the Supreme Court of Wisconsin, but further proceedings there were suspended because of the pendency of the § 1983 action presenting identical issues. Then on May 1, 1973, Mueller, pro se, filed this petition for writ of habeas corpus, containing similar claims, including the assertions that he was receiving drugs for his epilepsy, that there are no medical facilities which he could not be provided at Fox Lake, and other persons with epilepsy had been transferred. The district court appointed counsel and ordered a response, noting Mueller’s claim with respect to the dangers presented by prison living conditions on account of his illness. We are not now concerned with this claim, however, because Mueller has conceded, for the purposes of the appeals, that the pleadings establish he is not entitled to relief on this claim.

Appellees filed a detailed answer, stating, among other things that the determination had been made that Mueller’s need for supervision and medical treatment could not be met by the facilities at the correctional institution and showing the differences with respect to better medical facilities, and greater opportunity for supervisors to maintain observation of Mueller at the prison. Copies of medical reports and similar records were attached to the answer. By counsel, Mueller filed a reply asserting that appellee Turcott, the prison physician, had indicated the transfer might well be beneficial to Mueller, but that he had been overruled by a committee composed of laymen. On August 3, 1973, the district court dismissed the § 1983 action and denied the habeas petition, indicat-' ing that to do otherwise would be to review a highly discretionary administra-^ tive decision as to location of confinement.

I. Denial of Habeas petition.

Mueller contends that there are unresolved issues of fact, and that an evidentiary hearing was required. We think, however, that the pleadings establish that Mueller is not entitled to relief. The reason concededly given for denial of the transfer is rational on its face and well within the discretion of defendants. Mueller’s illness and frequency of his seizures, notwithstanding medication, is undisputed. He does not assert these circumstances his conclusory allegation that the denial was arbitrary and capricious does not entitle him to an evidentiary hearing.

Mueller did assert that the prison physician had no objection to the transfer and thought it might well be beneficial to Mueller. Assuming, as we must, that he could have proved this at an evidentiary hearing, it does not follow, as Mueller suggests, that it was arbitrary and capricious for a committee of laymen to decide against the transfer. The committee’s decision was that the closer supervision and more readily available medical facilities at the prison were more appropriate for Mueller. It doubtless considered the institutional problems involved as well as Mueller’s individual well being. In view of his illness and proneness to sudden seizures, we think the decision was well within administrative discretion even if at variance with the physician’s view.

Mueller also asserted that other prisoners who suffer with epilepsy have been transferred to the correctional institution. Assuming, again as we must, that he could prove this fact at an evidentiary hearing, it would not, in view of the wide range in form and severity of the disease, establish a denial of equal protection. We deem these two asserted facts, i. e. the physician’s view and the transfer of others, immaterial even if established, and that the assertion of them is insufficient to require an evidentiary hearing.

II. Dismissal of § 1988 action.

This action, though begun earlier, was dismissed at the same time the petition for habeas corpus was denied. In both Mueller sought, in effect, judicial review of the administrative decision. It is plain, considering the identity of the object and the factual and legal issues, that the district court took into account the pleadings and exhibits in the habeas corpus matter in deciding (in effect, on the pleadings) the § 1983 action. Under the circumstances we consider it appropriate to have done so.

The clerk of this court is directed to enter judgments affirming the judgments appealed from.


author: HASTINGS, Senior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Moises CANTU, Defendant-Appellant.
    No. 71-1277.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 12, 1972.
    Decided Oct. 6, 1972.
    Ronald E. Hahn, Deerfield, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., Mary L. Sfasciotti and William T. Huyck, Asst. U. S. Attys., Chicago, 111., for plaintiff-appellee.

      Before HASTINGS, Senior Circuit Judge, and CUMMINGS and SPRECHER, Circuit Judges.
   HASTINGS, Senior Circuit Judge.

Defendant Moisés Cantu was tried by a jury on a three-count indictment and convicted for the unlawful transport by means of a motor vehicle of three Mexican aliens who were not duly admitted by an immigration officer and were not lawfully entitled to enter or reside within the United States, in violation of Title 8, U.S.C.A. § 1324(a)(2). Following the disposition of trial and post-trial motions adversely to defendant, he was sentenced to serve four years on each of the three counts, such sentences to run concurrently with each other. Defendant appeals. We affirm.

Our examination of the record leaves us with the firm conviction that the evidence indisputably established beyond all reasonable doubt that defendant was guilty as charged and that the jury was fully warranted in so finding.

The Government presented the undisputed testimony of four Mexican aliens to the effect that defendant had met each witness in Mexico and, pursuant to an arrangement there made, subsequently met each of them in Dilley, Texas, where he picked three of them up and drove them to Sterling, Illinois. There they secured employment. Each paid defendant, the agreed sum of $250 for such transportation. The evidence further established that each of the aliens freely admitted that he entered the United States illegally, evading inspection by the immigration officers, and that defendant knowingly transported three of them in furtherance of their illegal entry. The fourth witness found other transportation to Sterling, Illinois. At the conclusion of the Government’s case, defendant rested without personally testifying or offering any testimony in his own defense. Defendant at all times was represented on trial and in this appeal by various court-appointed counsel.

On this appeal, defendant asserts two claimed trial errors and the unconstitutionality of Section 1324, supra.

Defendant first charges error in the denial of his motion to suppress evidence of his identification. The evidence in substance shows that the alien witnesses unlawfully entered the United States about February 1, 1969; that they had previously seen defendant in Mexico a few days before entry and thereafter three of them rode with him in his station wagon from Dilley, Texas to Sterling, Illinois, a non-stop trip of about 28 hours; that they spent several hours with defendant at his home in Sterling, Illinois, upon their arrival there; and that they saw defendant on frequent occasions thereafter when making payments to him for their transportation. The aliens were subsequently taken into custody by the immigration officers in Illinois in August 1969, and were interrogated as to the manner of their unlawful entry into the United States. At that time they were shown and identified a photograph of defendant. The defendant was not indicted until October 6, 1969. Subsequently, at defendant’s trial all of the aliens made in-court identifications of defendant, testifying as to the times they had been with him. After the first alien witness had testified and again at the conclusion of the trial, defendant moved to suppress the identification of defendant on the ground that such identification was prejudicially tainted by the showing of the one photograph of defendant at the time of their arrest by the immigration officers. Defendant further contends that the witnesses were somehow induced to incriminate defendant by being permitted to continue working in the United States.

The showing of the one photograph to the witnesses at the time of their arrest was merely a proper investigative procedure, long before defendant’s indictment, to determine whether their entry had been aided by defendant. At trial it was clearly shown that such witnesses knew and recognized defendant without hesitation. There was no danger of misidentification. Each witness was subjected to cross-examination on the pre-trial identification, without any impairment of his in-court identification or credibility. We can only conclude that, in the totality of the circumstances present here, the procedures complained of were wholly unrelated to the in-court identification. The trial court did not err in denying defendant’s motion to suppress. Simmons v. United States, 390 U.S. 377, 383-386, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States v. Gornick, 7 Cir., 448 F.2d 566, 568-570 (1971).

Defendant complains that the trial court erred in giving instruction number 22 for the reason that it did not contain all elements of the offense, lacking the element that the transportation was undertaken in furtherance of the violation of the statute. Considering the instructions given as a whole, we find this element of “furtherance of such violation” was brought to the attention of the jury in several other instructions. The jury was fairly informed of all elements of the offense and could not have been misled by instruction number 22. United States v. Bessesen, 7 Cir., 445 F.2d 463, 468, cert. denied, 404 U.S. 984 (1971), 92 S.Ct. 448, 30 L.Ed.2d 368 Further, defendant made no objection to such instruction prior to the trial court’s charge to the jury, and in fact offered no such instruction of his own. Absent a showing of “highly prejudicial” error, this issue will not be further considered here. United States v. Esquer, 7 Cir., 459 F.2d 431, 434-435 (1972).

Finally, defendant argues that Section 1324, supra, is unconstitutional because of vagueness. This claim is without merit. See United States v. Sanchez-Mata, 9 Cir., 429 F.2d 1391, 1392 (1970), and cases cited therein.

The judgment of conviction is affirmed.

Affirmed.

      . The four Mexican alien witnesses herein referred to encompass the three named in the three counts of the indictment.


author: PELL, Circuit Judge.

text:
    Anastasius G. TRITSIS, Plaintiff-Appellant, v. Ronald BACKER et al., Defendants-Appellees.
    No. 73-1627.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 25, 1974.
    Decided Aug. 15, 1974.

      Andrew M. Raucci, Victor F. Ciardel-li, Chicago, 111., for plaintiff-appellant.
    James R. Thompson, U. S. Atty., Martin B. Lowery, Asst. U. S. Atty., Chicago, 111., for defendants-appellees.
    Before PELL, STEVENS, and SPRECHER, Circuit Judges.
   PELL, Circuit Judge.

Plaintiff-appellant Anastasius Tritsis brought this action to recover damages, for the alleged violation of his rights under the Fourth, Fifth, Sixth, Ninth, Tenth, and Fourteenth Amendments to the federal constitution. In his complaint, Tritsis alleged that, on July 24, 1971, he was arrested, pursuant to a warrant, for illegally transferring a certain firearm in violation of 26 U.S.C. § 5861(e). The charges against Tritsis were dismissed when he proved that he was in Europe on June 7, 1971, the date of the alleged transfer. The defendants in this suit were employees of the Internal Revenue Service in the Bureau of Alcohol, Tobacco and Firearms (“Bureau”) at the time of Tritsis’ arrest: Ronald Backer was a Special Employee; Eugene Healey was Acting Chief Special Investigator; Kenneth Borcia was a Special Investigator. Jurisdiction was alleged under 28 U.S.C. §§ 1331, 1332 and 1343.

The district court denied the defen-ants’ motion to dismiss but sustained their motion for summary judgment. The plaintiff appeals, claiming generally that the defendants had failed to show that there was no genuine dispute of material fact.

In Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court held that damages may be recovered for injuries resulting from a federal officer’s violation of the Fourth Amendment. In the sequel to the Supreme Court decision, the Second Circuit noted that if the federal officer could show that he acted in good faith and with a reasonable belief in the validity of the arrest and search, the officer would have a valid defense to the suit for damages.

“[T]o prevail the police officer need not allege and prove probable cause in the constitutional sense. The standard governing police conduct is composed of two elements, the first is subjective and the second is objective. Thus the officer must allege and prove not only that he believed, in good faith, that his conduct was lawful, but also that his belief was reasonable.” Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 456 F.2d 1339, 1348 (2d Cir. 1972).

This court is in agreement with the Second Circuit’s statement as to the elements of a valid defense.

In the present case, the defendants submitted affidavits in support of their contention that they acted reasonably and in good faith and moved for summary judgment. The facts concerning Tritsis’ arrest, as set forth in the affidavits, are as follows.

On June 7, 1971, Backer, acting in an undercover capacity for the Bureau, purchased several guns including a Schmeisser 9mm. German machine gun from one Ernie Semet at the Atlas Arms Company, of which company plaintiff was an owner and manager. Backer stated, in his affidavit, that Se-met was aided by another man in the store in locating parts for the machine gun. On June 11, 1971, Backer, in another visit to Atlas, asked Semet if the individual who had helped locate the gun parts on June 7 was presently in the store. Semet replied that “Tasi” was not there. Boreia stated in his affidavit that, on June 14, 1971, he telephoned Atlas and asked for Tasi. The person answering the telephone told him that Tasi was not in and that Tasi was the manager of the store. In checking the Bureau’s firearm licensee file, Boreia found that Anastasius Tritsis was listed as the manager and president of Atlas. On July 23, 1971, on the basis of this information, Boreia obtained arrest warrants for Semet and Tritsis. The warrant against Tritsis was executed the following day by Healey.

Along with the affidavits of the three defendants, the' defense submitted two affidavits from Donald Kline, the Chief Special Investigator for the Bureau and the supervisor of Boreia and Healey. Kline described the proper procedure for making an arrest and stated that, in his opinion, Boreia and Healey acted within the scope of their authority.

The plaintiff argues, albeit in an abbreviated fashion, that Backer’s affidavit clearly establishes that the firearm was not “transferred” by the person identified as Tasi. Presumably if there was no basis for securing an arrest warrant, good faith would properly be subject to challenge. However, the affidavits clearly show that the individual identified as Tasi, while not physically handing the machine gun to the purchaser, did aid and abet in its transfer.

In opposition to the defendants’ motion for summary judgment, the plaintiff filed his own affidavit and that of Quentin Durst, sheriff of Woodford County. Neither of these affidavits contained any information which opposed the facts set forth in defendants’ affidavits. Thus, the sheriff’s affidavit stated that Backer had never been a deputy sheriff of Woodford County although the sheriff had given him a deputy sheriff’s card. We fail to see how this creates a dispute of fact bearing on the state of mind of the defendants which, of course, was the issue before the district court.

We agree with the district court that the defendants were entitled to summary-judgment in this situation. The facts set forth in the affidavits filed by the defense affirmatively establish that the defendants acted both reasonably and in good faith. Since the affidavits submitted by Tritsis raised no genuine issue of fact as to defendants’ good faith or reasonable belief, summary judgment was proper. Strutt v. Upham, 440 F.2d 1236 (9th Cir. 1971).

Affirmed.

      . Eugene Healey and Kenneth Borcia were misnamed “James Healy” and “Kenneth Borscia,” respectively, in the complaint.

      . The district court’s opinion is reported at 355 F.Supp. 225 (N.D.Ill.1973).

      . During some eight months prior to July 1971, Backer had “made undercover purchases of machine guns, destructive devices, stolen guns and other types of illegal firearms from over twenty (20) different individuals in several states. In the course of this investigation, Mr. Backer was always truthful and reliable.”

      . Plaintiff argues that the affidavits of Bor-cia, Backer, and Kline were incompetent to the extent that they contained hearsay statements. Plaintiff does not specify to which statements he is referring. Presumably, he is complaining of the statements of persons other than the affiants that the man’s name was Tasi and that Tasi was the manager of the store. Plaintiff’s argument is without merit. These statements are not here excludable as hearsay since they were offered not as proof of the matter asserted but, rather, to show the affiants’ reasonable belief and good faith. McCormick, Law of Evidence § 249, at 589-90 (2d ed. 1972). In the affairs of daily life, people do net upon the basis of utterances of others when, as here, there was a reasonable basis for doing so.


author: HEANEY, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Burton Gene BRIERLY, Appellant. UNITED STATES of America, Appellee, v. William Perry BURGESS, Appellant.
    Nos. 73-1804 and 73-1805.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 15, 1974.
    Decided Aug. 16, 1974.
    Certiorari Denied Dec. 9, 1974.
    See 95 S.Ct. 631.

      Alfred A. Beardmore, Charles City, Iowa, for appellant Brierly.
    Michael H. Irvine, Cedar Rapids, Iowa, for appellant Burgess.

      Gary E. Wenell, Asst. U. S. Atty., Sioux City, Iowa, Evan L. Hultman, U. S. Atty., was with him on brief, for ap-pellee.
    Before HEANEY and STEPHENSON, Circuit Judges, and SMITH, Senior District Judge.

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

   HEANEY, Circuit Judge.

Burton Brierly and William Burgess appeal from their convictions on three counts of an indictment. The critical issue is whether either or both are entitled to reversal on one or more of the counts because an accomplice was permitted to testify with respect to their involvement in the robbery and was permitted to claim the protection of the Fifth Amendment when cross-examined. We affirm.

The trial began with Brierly, Burgess and a third codefendant, Joseph O’Rourke, before the court. Prior to the third day of testimony, O’Rourke changed his plea to guilty and testified on behalf of the government. His testimony on direct examination can be boiled down to: Brierly, Burgess and I planned the robbery, and Burgess and I carried it out. Under cross-examination, he asserted his privilege against sélf-inerimination in several areas. Brierly and Burgess did not seek to compel O’Rourke to answer but moved to strike his entire testimony, and the trial court overruled the motion. The defendants allege this was error and that their convictions must be reversed.

A brief summarization of the facts will suffice to place the objection in context. The First State Bank in Nora Springs, Iowa, was robbed at about 11:30 a. m. on January 23, 1973, by a man wearing a ski mask and overalls with patches and carrying a 16-gauge shotgun and duffle bag. Witnesses testified that early that same morning, Burgess and O’Rourke had purchased a ski mask, duffle bag and 16-gauge shotgun shells in Mason City, Iowa. Witnesses placed Burgess and O’Rourke in Nora Springs on the morning of the crime. The getaway car used in the robbery was owned by Burgess.

O’Rourke was arrested the afternoon of the robbery in Nora Springs in the getaway car. Money stolen in the robbery was found on him. Burgess was arrested at a cabin outside of Nora Springs where money stolen in the robbery, the overalls, duffle bag, 16-gauge shotgun shells, ski mask, Browning 16-gauge shotgun and a shotgun case were found. The shotgun and shotgun case were identified as having been recently stolen from a residence in Nora Springs.

O’Rourke testified: that he, Burgess and Brierly had met at Brierly’s home and had discussed robbing the bank at Nora Springs, Iowa, and that'two days after the meeting, they went for a drive looking for hideouts; that the three men met for a second time at a hotel in Mason City where they agreed on the time of the robbery; that Brierly was to pick him up after the robbery, and that he was waiting for that event to occur when he was arrested; that arrangements had been made for him to purchase an automobile that Brierly had been driving and holding for sale for another; that he and Brierly would drive to Mason City in the car after the robbery; and that the three men were to meet at Albert Lea, Minnesota, to divide the stolen money.

The defendants contend that O’Rourke’s assertion of privilege unduly restricted cross-examination in three areas: first, with regard to a sheriff’s badge which was found on O’Rourke at the time of his arrest and which belonged to Brierly; second, with regard to the shotgun used in the robbery; and, third, with regard to the reason for O’Rourke being parked near the Nora Springs school at the time of his arrest.

We recognize that the testimony of a witness on direct examination may be used against a defendant even though a witness asserts the privilege against self-incrimination upon cross-examination where the testimony sought to be elicited goes to collateral matters or the credibility of the witness. If, however, the witness — by invoking the privilege — precludes inquiry into the details of his direct testimony so that there is a substantial danger of prejudice, the direct testimony should be stricken in whole or in part. Necessarily, the trial court has discretion in this area, and only in a case of abuse of such discretion resulting in obvious prejudice should an appellate 'court intervene. Coil v. United States, 343 F.2d 573 (8th Cir.), cert. denied, 382 U.S. 821, 86 S.Ct. 48, 15 L.Ed.2d 67 (1965); Smith v. United States, 331 F.2d 265 (8th Cir.), cert. denied, 379 U.S. 824, 85 S.Ct. 49, 13 L.Ed.2d 34 (1964). We have reviewed the record and find no abuse of discretion.

The questions which O’Rourke refused to answer went to. collateral matters or were intended to elicit answers which would tend to impeach him. Brierly admitted that he knew O’Rourke and had associated with him in the two weeks before the robbery. Thus, the question of whether O’Rourke stole or was given the sheriff’s badge was clearly collateral. The questions with respect to the shotgun were with reference to a gun which was not used in the robbery. They were designed to show that O’Rourke had lied to the FBI with respect to the gun used in the robbery, and were obviously intended to impeach O’Rourke. And the questions with respect to the stalled car were asked for the same purpose.

Each defendant has made other assignments of error.

Brierly contends:

(1) That a continuance should have been granted until his counsel could obtain a transcript of a pretrial hearing on O’Rourke’s motion to suppress incriminating statements made by him. That hearing was held approximately one week prior to commencement of the trial. O’Rourke testified in an extremely vague manner. He remembered nothing about the robbery and stated he did not know when he had eaten last, where he had slept the night before or what a lawyer, an oath or the Constitution was. His testimony was sufficiently disturbing so that the government, at the urging of the trial court, moved for a psychiatric examination. The examination was made and O’Rourke was determined to have a low intelligence quotient but to be competent to stand trial.

We find no abuse of discretion in refusing to grant a continuance. The granting of such a motion is discretionary with the trial court. See, United States v. Leach, 429 F.2d 956 (8th Cir. 1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971), and cases cited therein. Brierly’s counsel was given notice of the hearing and failed to attend or arrange for substitute counsel to attend. While the record had not been transcribed by the reporter by the time the motion for continuance was made, the trial court offered to have the reporter read the transcript. This offer was refused by counsel. We think the court’s offer was sufficient. We further note that Burgess’s counsel was present at the hearing. Moreover, counsel for the defendants hammered home the point that O’Rourke’s memory recovered remarkably once the plea was entered.

(2) That the government failed in its duty to advise counsel of information favorable to the defense. The short answer to this contention is that there was no favorable information to be given. To require the government to tell counsel that O’Rourke had testified at the hearing and did not recall being involved in the robbery, borders on the frivolous. Cf., United States v. Hernandez, 441 F.2d 157 (5th Cir.), cert. denied, 404 U.S. 847, 92 S.Ct. 150, 30 L.Ed.2d 84 (1971); United States v. Soblen, 301 F.2d 236 (2nd Cir.), cert. denied, 370 U.S. 944, 82 S.Ct. 1585, 8 L.Ed.2d 810 (1962).

(3) That the jury was denied an opportunity to hear evidence regarding O’Rourke’s credibility in that the transcript of O’Rourke’s pretrial testimony was not entered in the record. The answer to this contention is that the transcript was not available, and the fault does not lie with the government. Moreover, the substance of O’Rourke’s testimony at the pretrial hearing was brought to the attention of the jury through cross-examination.

(4) That the trial court erred in denying the defendant’s motion for a mistrial. The defendant, early in the trial, alleged that the government was involved in a scheme to introduce evidence against O’Rourke and then accept a guilty plea and place O’Rourke on the stand. The defendant further alleges that the scheme was put into effect with O’Rourke’s connivance and the price of his testimony was the dropping of the robbery charge. The government and O’Rourke’s counsel have vigorously denied any agreement.

In view of O’Rourke’s unexpected testimony at the pretrial hearing and the order for psychiatric examination, the government was rightly and commendably concerned with O’Rourke’s competency to make a plea. It was not until O’Rourke’s counsel had assured the government that O’Rourke was capable of entering a plea and that O’Rourke had been able to assist in his own defense, that the government felt it could accept the plea. The government had been constantly reevaluating its case and concluded it could accept the plea provided O’Rourke could make a meaningful factual record for his plea. It was not until O’Rourke had completed his plea that the government determined to put him on the stand.

We further note that the evidence against O’Rourke would have been admissible against the defendants inasmuch as O’Rourke was an unindicted co-conspirator and, as such, his acts and declarations in furtherance of the conspiracy would be admissible against the other conspirators.

Burgess’s first contention is that the evidence against him was insufficient to convict. We disagree. O’Rourke’s testimony clearly implicated Burgess. Moreover, the government proved that Burgess bought the ski mask, bank employees identified the mask, and the mask was found in the vicinity of the place where Burgess was arrested. Other items (shotgun, coveralls with patches and the duffle bag) known to have been worn or carried by the robber were found in the same area. The serial numbers on the bills taken from the bank matched the serial numbers on the bills found in the woodpile located fifteen feet away from the cabin in which the defendant was arrested. There was only one set of tracks in the new snow leading to the cabin and woodpile. Burgess was alone in the cabin. Unless the jury could find that someone else had levitated himself from the road to the woodpile, they could not conclude other than that the defendant was guilty.

Burgess’s second contention is that the trial court erred in failing to instruct the jury on 18 U.S.C. § 2113(c), receiving or possessing money, as a lesser included offense under 18 U.S.C. § 2113(b), taking and carrying away. The defendant is mistaken. It is clear that these are separate crimes aimed at separate individuals and that the same person cannot be guilty of both, i. e., cannot take and carry away and receive and possess the same stolen money. Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961); Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); United States v. White, 440 F.2d 978 (5th Cir. 1971).

Burgess’s final contention is that the trial court erred in denying his motions for severance which were made prior to and during the trial. He contends that the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), was violated. He argues that the reading of the indictment, when combined with the government’s opening statement, provided a link by which the jury could identify him as the unnamed person in the statements made by codefendants to law enforcement agents and to which statements the agents testified. The government assured the trial court before trial that agents would not mention the names of other codefendants but only the name of the person making the statement. This procedure was adhered to by the witnesses, and such a procedure has been approved of by this Court. Slawek v. United States, 413 F.2d 957 (8th Cir. 1969).

We find no merit in Burgess’s other contentions and no error in the trial court’s rulings.

Affirmed.

      . Count I, conspiracy to rob a federally insured bank. Count II, robbery of the bank by force and violence. Count III, larceny from the bank. Brierly was charged as an aider and abettor in Counts II and III. Brierly received concurrent three-year sentences on each count. The sentence on Count III was later vacated. Burgess received consecutive sentences of five years imprisonment on Count I and twenty-five years imprisonment on Count II. The sentence on Count II encompassed the charges as to Count III.

      . A third codefendant, Joseph O’Rourke, was named but not charged as a co-conspirator in Count I, charged in Count II, not charged in Count III and charged alone with possession and receipt of stolen money in Count IV.

      . Mason City, Iowa, is about eight miles from Nora Springs, Iowa.

      . AVe find no merit in Brierly’s other assignments of error, namely: (1) The prosecution failed to inform him of evidence favorable to his position; (2) the jury was denied an opportunity to hear all the material evidence bearing on O’Rourke’s credibility; (3) the instructions given by the trial court to the jury regarding O’Rourke’s change of plea was inadequate to protect him; and (4) the government used its position of power to control O’Rourke’s bail and thereby force him to cooperate.

      . It is well settled that the statements of conspirators are admissible against all members of the conspiracy so long as there is other independent evidence showing, in fact, a conspiracy between the de-clarant and the others.
      National Dairy Products Corporation v. United States, 350 F.2d 321, 337 (8th Cir. 1965), vacated on other grounds, 384 U.S. 883, 86 S.Ct. 1913, 16 L.Ed.2d 995 (1966), and cases cited therein.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kenneth HAWKINS, Defendant-Appellant.
    No. 74-2177.
    United States Court of Appeals, Ninth Circuit.
    Aug. 12, 1974.
    Certiorari Denied Dec. 16, 1974.
    See 95 S.Ct. 668.

      Robert H. Stevenson, Seattle, Wash., for defendant-appellant.
    Marvin L. Gray, Jr., Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.
    Before WRIGHT, KILKENNY and GOODWIN, Circuit Judges.
   PER CURIAM:

Hawkins appeals from the issuance of an order of civil contempt against him following his refusal to give writing exemplars to the grand jury. We affirm.

On two occasions Hawkins was taken from prison under a writ of habeas corpus ad testificandum, brought before a grand jury, and asked to give writing exemplars. He refused on both occasions. Following his first refusal, the district court found him to be in criminal contempt and sentenced him to a term of six months less a day. Following his second refusal, almost one year later, the district court found him to be in civil contempt and ordered him to remain in prison until he provided the writing exemplars or until the term of the present grand jury expires, in March 1975. Hawkins appeals only from the order of civil contempt.

He raises several issues on appeal. First, he claims that his constitutional right against double jeopardy has been violated. Specifically, he alleges that since the district court first held him in criminal contempt for failing to give writing exemplars, and sentenced him to a fixed term of almost six months for that offense, it was constitutionally improper for the court, on a subsequent occasion, to hold him in civil contempt for again failing to give writing exemplars.

This argument is without merit. “It is well established that separate successive contempts are punishable as separate offenses.” United States v. Gebhard, 426 F.2d 965, 968 (9th Cir. 1970), and cases cited therein. Thus, the criminal contempt citation for Hawkins’ first refusal to provide exemplars was wholly separable from the civil contempt citation for his second refusal. At no time did the district court place him in double jeopardy for the same offense.

The second issue raised by Hawkins is that he was not given a meaningful opportunity to show just cause for his refusal to furnish the handwriting exemplars. We also reject this claim.

A court may not hold a person in contempt for refusing to testify when that person has shown “just cause” for his refusal. 28 U.S.C. § 1826(a). In a contempt proceeding, whether denominated civil or criminal, the alleged contemnor is entitled to the safeguards provided by Rule 42(b) of the Federal Rules of Criminal Procedure; that is, to notice and to a reasonable time to prepare his defense. United States v. Alter, 482 F.2d 1016, 1023 (9th Cir. 1973).

In the present case, Hawkins refused to provide exemplars to the grand jury on April 16, 1974. On that same day he was brought before the district court and ordered to furnish them, and again he refused. The district court set the matter over to the following day, April 17, 1974, to give Hawkins an opportunity to discuss the situation with an attorney and to be prepared to change his mind or be held in contempt of court. Following another refusal the next day, Hawkins was held in civil contempt. He contends that the one day which the district court allowed him to consider the matter was not a reasonable time to prepare his defense.

This court, when considering the amount of time reasonably necessary to prepare a defense, has recognized that “[a] reasonable time will vary according to the circumstances of each case.” United States v. Alter, supra at 1023. We have held that five days will generally be necessary “[w]hen the alleged contemnor’s defense raises legal issues of some complexity or there is an indication that an evidentiary hearing may be required . . . .” Id. However,

[i]n some cases all the important issues will have been raised by the time of the immunity hearing, and it will be apparent that the actual contempt can raise no new issues. If so, the witness may have had adequate time to prepare even though very little time elapses between the alleged contempt and the contempt hearing.

Id. at 1023-1024.

Under the circumstances of this case, we do not think that Hawkins was denied reasonable time to prepare his defense. His attorney, who appeared on the afternoon of the day the contempt order was signed, stated that he had advised Hawkins what he thought Hawkins should do, and that Hawkins had “already accomplished that act and has no intentions of changing that particular position.” The only matter the attorney addressed to the court’s attention, and the only matter Hawkins asked his attorney to address to the court, concerned the nature of the contempt order. It appears that never until now did either Hawkins or his attorney claim that they were not allowed adequate time to prepare a defense. Indeed, the tenor of the testimony by Hawkins’ attorney indicates that there was adequate time.

The remaining issues raised by Hawkins require little attention. He claims that his Fourth Amendment right against unreasonable seizure was violated when he was taken from prison under the authority of a writ of habeas corpus ad testificandum to appear before the grand jury. This argument is frivolous. See generally' United States v. Dionisio, 410 U.S. 1, 8-15, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973). He claims further that he was denied his statutory right to use immunity in that he refused, “on the basis of his privilege against self incrimination,” to “provide other information” within the meaning of 18 U.S.C. § 6002. This argument misses the mark because “handwriting exemplars [are] not protected by the privilege against compulsory self-incrimination.” United States v. Dionisio, supra, at 6, 93 S.Ct. at 768 (1973). Finally, Hawkins contends that the manner of the government’s use of the grand jury and the contempt process in this case is “a shocking and illegal abuse.” This court has specifically rejected a similar argument, stating that “[w]e do not find it shocking that a successor grand jury wants the testimony to which it is legally entitled.” United States v. Duncan, 456 F.2d 1401, at 1407 (9th Cir. 1972).

Affirmed.


author: GIBBONS, Circuit Judge.

text:
    McCREARY TIRE & RUBBER COMPANY v. CEAT S.p.A., Appellant, v. MELLON BANK, N.A., Garnishee.
    No. 73-2020.
    United States Court of Appeals, Third Circuit.
    Argued June 10, 1974.
    Decided July 8, 1974.

      Charles Weiss, Frank J. Clements, Thorp, Reed & Armstrong, Pittsburgh, Pa., for appellee.
    Clayton A. Sweeney, Stephen A. George, Buchanan, Ingersoll, Rodewald, Kyle & Buerger, Pittsburgh, Pa., for appellant.
    Before STALEY, GIBBONS and WEIS, Circuit Judges.
   OPINION OF THE COURT.

GIBBONS, Circuit Judge.

This is an appeal in a diversity ease from an order which (1) denied defendant’s motion to dissolve a foreign attachment, (2) denied defendant’s motion to dismiss the complaint, (3) denied defendant's motion to transfer to another venue, and (4) denied defendant’s motion to stay the case pending arbitration. The case commenced with the filing of a Praecipe and Complaint in Foreign Attachment in the Court of Common Pleas of Allegheny County. The plaintiff, McCreary Tire & Rubber Company (McCreary), a Pennsylvania corporation, sued CEAT, S.p.A. (CEAT), an Italian corporation, for alleged breaches of a distributorship contract and Mellon Bank, N.A. (Mellon), garnishee. CEAT filed a petition for removal to the United States District Court for the Western District of Pennsylvania. CEAT then made three alternative motions. It moved to dissolve the foreign attachment on the ground that at the time of service of the writ Mellon had none of its property in Mellon’s custody; it moved to dismiss the complaint; and it moved for an order transferring the case to the United States District Court for the District of Massachusetts, where a prior action by McCreary against CEAT is pending, and in which CEAT has made a general appearance. It also moved for a stay of the within action so as to permit arbitration of the dispute in accordance with the terms of the contract upon which McCreary sued. The court denied each motion, denied a motion for a certification pursuant to 28 U.S.C. § 1292(b) and denied a motion for reconsideration. This appeal followed.

It is undisputed that a suit by Mc-Creary against CEAT on essentially the same claims is pending in the United States District Court for the District of Massachusetts, that in the Massachusetts case CEAT has made a general appearance, that the Massachusetts district court ordered arbitration in accordance with the contract and stayed the suit pending arbitration and that the order compelling arbitration has been affirmed by the Court of Appeals for the First Circuit, McCreary Tire & Rubber Co. v. CEAT, S.p.A., No. 73-1138 (1st Cir. July 11, 1973). At oral argument we were advised by counsel for Mc-Creary and CEAT that the arbitration proceeding had actually commenced.

I. APPEALABILITY

In this court McCreary moved to dismiss the appeal. Another panel on March 13, 1974 referred that motion to the panel which would hear the appeal on the merits. At the outset, therefore, we dispose of the motion to dismiss the appeal. The order appealed from, while embodied in a single document, embraces four separate subject matters which must be treated separately.

A. The Motion to Dissolve a Prejudgment Foreign Attachment

Paragraph one of the order provides “Defendant’s Motion to Dissolve Foreign Attachment be and hereby is denied.” The foreign attachment was made pursuant to Rules 1255 and 1258 of the Pennsylvania Rules of Civil Procedure 12 P.S. Appendix. In United States v. Estate of Pearce, 498 F.2d 847 (3d Cir. 1974), the court en banc held unanimously that an order denying a motion to vacate a sequestration pursuant to 10 Del.C. § 366 was an interlocutory order unappealable under 28 U.S.C. § 1291, and the other eight active judges declined my invitation to treat such an order as the functional equivalent of an injunction or appointment of a receiver appealable under 28 U.S.C. § 1292(a). There is no basis for distinguishing Delaware foreign sequestration and Pennsylvania foreign attachment. Paragraph one is interlocutory and unappealable.

B. The Motion to Dismiss the Action

It is settled that denial of a motion to dismiss is unappealable. E. g., Fleming v. Bernardi, 441 F.2d 732 (3d Cir. 1973) (per curiam); Commonwealth of Pennsylvania v. Brown, 373 F.2d 771, 776 (3d Cir. 1967); see Catlin v. United States, 324 U.S. 229, 236, 65 S.Ct. 631, 89 L.Ed. 911 (1945).

C. The Transfer Motion

An order transferring an action pursuant to 28 U.S.C. § 1404(a) or refusing to make such a transfer is interlocutory and unappealable under § 1291. All States Freight v. Modarelli, 196 F.2d 1010, 1011 (3d Cir. 1952). Limited review may be available by way of mandamus to review a transfer motion which the district court could not properly have made, Solomon v. Continental American Life Insurance Co., 472 F.2d 1043, 1045-1046 (3d Cir. 1973), and a discretionary appeal pursuant to § 1292(b) may be available, see Katz v. Carte Blanche Corp., 496 F.2d 747, at 752-756 (3d Cir. 1974). But appellant does not contend that its appeal should be treated as a petition for mandamus, and § 1292(b) certification was denied by the district court.

D. The Motion for a Stay Pending Arbitration

The order denying a stay pending arbitration is not a final order appealable under § 1291. But Mc-Creary’s complaint seeks recovery of money damages and no other relief. Since this suit would, prior to the merger of law and equity, have been an action at law, the motion for a stay pending arbitration is treated as a motion for an injunction against continuing the action at law. It is appealable pursuant to § 1292(a)(1) as an order denying an injunction. Ettelson v. Metropolitan Life Insurance Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176 (1942); Enelow v. New York Life Insurance Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440 (1935); Kirsehner v. West Co., 300 F.2d 133, 134 (3d Cir. 1962). Compare Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233 (1955), with Merritt-Chapman & Scott Corp. v. Pennsylvania Turnpike Commission, 387 F.2d 768 (3d Cir. 1967). Thus we have appellate jurisdiction to consider whether the action should have been stayed pending arbitration.

II. THE MERITS OF THE ORDER DENYING A STAY

Attached to McCreary’s complaint as Exhibit A is a copy of a contract dated November 16, 1970 whereby CEAT appointed McCreary its exclusive distributor in the United States of pneumatic tires and tubes manufactured by CEAT in Italy bearing the CEAT label or having the same tread design as tires bearing that label. Section 3 of the contract also provides, in relevant part:

“(b) During the period this agreement is in effect, CEAT shall not appoint any other distributor or any other agent for the sale of Products in the Territory, and CEAT shall not itself otherwise sell or distribute the Products directly or indirectly in the Territory. .
(i) CEAT warrants that all Products delivered by it to or for the account of the Distributor shall be free from defects in material or workmanship (which phrase as used in this Agreement shall include ply.and tread separation resulting from any such defects, and substantial visual defects) and shall conform to all safety and other standards established by the United States Department of Transportation or any other Federal governmental agency having jurisdiction over the Products.”

Count I of the complaint alleges that CEAT has breached the exclusivity clause quoted above by selling to Dud-dy’s Inc., a Massachusetts corporation, radial tires bearing a different trade name but having the same tread design. This count seeks $2,000,000 in damages. Counts III and IV allege breaches of the express warranty quoted above, and of an implied warranty of merchantable quality. Each of these counts seeks $250,000 in damages. The allegations of Counts I, III and IV relate to disputes which quite plainly fall within the arbitration clause in section 7(b) of the agreement:

“This agreement shall be governed by the laws of the Republic of Italy. Any controversy arising out of or in connection with this agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce, by three arbitrators appointed in accordance with said Rules. The arbitration shall be held in Brussels, Belgium, and shall be conducted in English. Judgment upon the award rendered may be entered in any court having jurisdiction for a judicial acceptance of the award and an order of enforcement, as the case may be.

Count II of the complaint realleges the existence of the November 16, 1970 exclusive distributorship contract, Exhibit A. It then refers to Exhibit B, a letter dated November 5, 1970 from CEAT to McCreary, which provides:

“As you know, CEAT tires are manufactured in India by a corporation partly owned by us. We will give that Indian corporation a copy of the proposed Distributor Agreement under which you are made the exclusive distributor in the United States for CEAT passenger car and truck tires. We will use our best efforts to obtain the agreement of the Indian corporation that if it should ever export passenger car or truck tires to the United States, it will appoint you the exclusive distributor for such tires on the same terms and conditions (other than minimum quantities) as the terms and conditions specified in the Distributor Agreement between us. If you do not receive the agreement of the Indian corporation specified above, and if thereafter, at a time that the Distributor Agreement between us is in force, it seeks to sell tires (other than in a nominal or negligible amount) intended to be delivered or sold in the United States, we agree that we will use our best efforts to prevent the importation into the United States or sale there under the trademark CEAT owned by us.
We represent that except in India, CEAT tires are not made outside of our plants in Italy. We agree that if at any time we manufacture CEAT tires outside of Italy or we grant the right to any company, whether or not controlled by us, to manufacture CEAT tires, we will require that you be designated exclusive distributor in the United States on the same terms (except for minimum quantities) as those in the Distributor Agreement between us.”

Count II alleges, further, that since October 1972 CEAT brand tires manufactured by CEAT Tyres of India, Ltd. (CEAT-India) have been imported into the United States and sold in the states of California and Arizona, and that on information and belief CEAT has failed to use its best efforts to have CEAT-In-dia appoint McCreary as its exclusive distributor for CEAT brand tires in the United States nor has it used its best efforts to prevent CEAT brand tires manufactured by CEAT-India from being imported and sold in the United States. Count II seeks $250,000 in damages. A fair reading of the count is that the damages alleged arise out of the existence of the distributorship agreement. Thus prima facie Count II as well as Counts I, III and IV would seem to involve a “controversy arising out of or in connection with” that agreement and to be covered by the arbitration clause. In its motion for a stay pending arbitration CEAT so alleged, and further alleged:

“The arbitration agreement between plaintiff and defendants must be enforced pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958.”

The district court was also informed of the undisputed fact that McCreary had started a suit in October 1972 in the United States District Court for the District of Massachusetts by attempting to attach debts owed CEAT. In that suit, which joined Duddy’s, Inc. as a defendant, McCreary alleged the same breaches as are alleged in Counts I and II. CEAT appeared in the Massachusetts action and its motions for a stay and an order compelling arbitration of the alleged breach of the exclusive distributorship were granted. Thus when the stay was denied in this action arbitration had already been ordered, and is now underway.

McCreary urges that the denial of the stay pending arbitration should be affirmed since the district court acted within the bounds of a permissible discretion. See Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 163, 81 L.Ed. 153 (1936); Merritt-Chapman & Scott Corp. v. Pennsylvania Turnpike Commission, supra, 387 F.2d at 773. But this is not a case in which a stay pending arbitration was discretionary.

The district court was bound by the terms of the Convention on Recognition and Enforcement of Foreign Arbitral Awards, [1970] 3 U.S.T. 2517, T.I.A.S. No. 6997 (reprinted following 9 U.S.C.A. § 201 (1974 Supp.)). That treaty was ratified by Italy on January 31, 1969 and by the United States on September 30, 1970. Congress passed implementing legislation on July 31, 1970. Pub.L. No. 91-368, 84 Stat. 692 (codified at 9 U.S. C. §§ 201-208). That statute provides in part:

“An arbitration agreement or arbi-tral award arising out of a legal relationship, whether contractual or not, which is considered as commercial, including a transaction, contract, or agreement described in section 2 of this title [§ 2 of the federal Arbitration Act of 1925, 9 U.S.C. § 2], falls under the Convention.” 9 U.S.C. § 202.

The same statute provides that an action or proceeding falling under the Convention shall be deemed to arise under the laws and treaties of the United States and that the district courts of the United States shall have original jurisdiction over such proceedings without regard to amount in controversy. 9 U. S.C. § 203. Although this case was removed on diversity grounds it was also removable on the authority of 9 U.S.C. § 205, which provides for such removal. Moreover 9 U.S.C. § 206 makes clear that the federal court may order arbitration of a dispute to which the Convention applies at the place agreed upon by the parties, within or without the United States. See also Agreement Supplementing the Treaty of Friendship, Commerce and Navigation, United States and Italy, article VI, [1961] 1 U.S.T. 131, 136, T.I.A.S. No. 4685. Compare with 9 U.S.C. § 4.

Article II of the Convention provides:

“1. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.
2. The term ‘agreement in writing’ shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.
3. The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.”

There is nothing discretionary about article 11(3) of the Convention. It states that district courts shall at the request of a party to an arbitration agreement refer the parties to arbitration. The enactment of Pub.L. 91-368, providing a federal remedy for the enforcement of the Convention, including removal jurisdiction without regard to diversity or amount in controversy, demonstrates the firm commitment of the Congress to the elimination of vestiges of judicial reluctance to enforce arbitration agreements, at least in the international commercial context. See Scherk v. Alberto-Culver Co., 417 U.S. 506, n. 15, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974). It was error to deny the motion for a stay in disregard of the convention.

Since we hold the treaty controls, it is unnecessary to decide whether in any event, since the complaint shows on its face that it involves a “transaction involving [foreign] commerce,” 9 U.S.C. § 2, the mandatory language of § 3 of the federal Arbitration Act of 1925 compels the same result. Cf. Merritt-Chapman & Scott Corp. v. Pennsylvania Turnpike Commission, supra, 387 F.2d at 772.

III. THE CONTINUANCE OF THE ATTACHMENT

We pointed out above that an order refusing to vacate an attachment is interlocutory and unappealable. That order is before us, however, since it is incorporated in the same order denying the stay. Ordinarily an interlocutory appeal pursuant to § 1292(a)(1) brings before us only that part of the judgment having to do with injunctive relief. Caterpillar Tractor Co. v. International Harvester Co., 120 F.2d 82, 86 (3d Cir. 1941). It has been urged, however, that this is only a rule of orderly judicial administration. “Once a timely appeal is taken from an order made appealable by statute, the power of a court of appeals should be plenary to the extent that it chooses to exercise it. A court should not close its eyes to what is plainly there.” 9 Moore’s Federal Practice If 110.25 [1], at 273 (2d ed. 1973). See Hurwitz v. Directors Guild of America, Inc., 364 F.2d 67 (2d Cir.), cert. denied, 385 U.S. 971, 87 S.Ct. 508, 17 L.Ed.2d 435 (1966); cf. Johnson v. Alldredge, 488 F.2d 820 (3d Cir. 1973). What is plainly there to see is that resort to a Praecipe and Complaint in Foreign Attachment in the Court of Common Pleas of Pennsylvania is a violation of Mc-Creary’s agreement to submit the underlying disputes to arbitration, and that the Convention obliges the district court to recognize and enforce the agreement to arbitrate. Quite possibly foreign attachment may be available for the enforcement of an arbitration award. This complaint does not seek to enforce an arbitration award by foreign attachment. It seeks to bypass the agreed upon method of, settling disputes. Such a bypass is prohibited by the Convention if one party to the agreement objects. Unlike § 3 of the federal Act, article 11(3) of the Convention provides that the court of a contracting state shall “refer the parties to arbitration” rather than “stay the trial of the action.” The Convention forbids the courts of a contracting state from entertaining a suit which violates an agreement to arbitrate. Thus the contention that arbitration is merely another method of trial, to which state provisional remedies should equally apply, is unavailable. That contention, accepted by Judge Learned Hand as a justification for prearbitration attachment in Murray Oil Products Co. v. Mutsui & Co., 146 F.2d 381, 384 (2d Cir. 1944), was rejected, in a diversity context, by the Supreme Court in Bernhardt v. Polygraphic Company of America, Inc., 350 U.S. 198, 202, 76 S.Ct. 273, 100 L.Ed. 199 (1956). Here, although the suit is in the federal court after removal from a state court, the governing law with respect to arbitration is the Convention. In the district court CEAT, after referring to the Treaty, alleged:

“4. Contrary to the terms of both the Distributor Agreement and of the Convention, no arbitration has been had of the claims asserted by plaintiff in this action against defendant, and defendant is not aware of any demands by plaintiff for such arbitration.”

CEAT then asked for an order releasing all property from the foreign attachment and permitting arbitration. The obvious purpose of the enactment of Pub. L. 91-368, permitting removal of all cases falling within the terms of the treaty, was to prevent the vagaries of state law from impeding its full implementation. Permitting a continued resort to foreign attachment in breach of the agreement is inconsistent with that purpose. The relief requested, a release of all property from the attachment, should have been granted.

Since we conclude that the Convention requires discharge of the foreign attachment, we have no occasion to pass upon CEAT’s attack on the constitutionality of the Pennsylvania foreign attachment procedures.

The order of the district court will be reversed and the case remanded for the entry of an order (1) discharging the foreign attachment and (2) referring the disputed claims to arbitration pursuant to Article 7(b) of Exhibit A attached to the complaint.

      . The First Circuit held that the portion of the district court’s order staying the action was unappealable. That holding overlooked the Enelow-Ettelson rule, discussed infra, which the First Circuit correctly applied to find appealability in Warren Brothers Co. v. Cardi, 471 F.2d 1304, 1306 (1st Cir. 1973) and to find unappealability in New England Power Co. v. Asiatic Petroleum Corp., 456 F.2d 183, 185-186 (1st Cir. 1972).

      . “If any suit or proceeding be brought in any of the courts of tlie United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.” 9 U.S. C. § 3.

      . Article III of the Convention provides:
      “Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with rules and procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. . . . ”