author: AINSWORTH, Circuit Judge:

text:
    Clint C. BLACKMAN, Jr., E. B. Yale and Thrifty-Man No. 4, Ltd., Plaintiffs-Appellants, v. The CITY OF BIG SANDY, TEXAS, and Steve Prociw, et al., etc., Defendants-Appellees.
    No. 74-3021
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 7, 1975.

      Earl Roberts, Jr., Longview, Tex., for plaintiffs-appellants.
    Lowell C. Holt, Gilmer, Tex., for defendants-appellees.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

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

   AINSWORTH, Circuit Judge:

On June 1, 1971, Big Sandy, Texas went “wet,” as the voters of the City chose to legalize the sale of beer and alcoholic beverages within the corporate limits of the City. Two of the appellants purchased land along U. S. Highway 80, and constructed a small self-service gasoline station, which they subsequently leased to a third appellant. Apparently one of the purposes in constructing the station was to acquire a license to sell beer at the location, and soon after completing construction, appellants applied for a permit to sell beer.

The service station was directly across the street from a church, however, and a license could not be secured as the City had passed an ordinance prohibiting the sale of alcoholic beverages within 300 feet of any church. See Vernon’s Texas Code Ann., Penal Code Art. 666-25a. Appellants then arranged to have their building winched backwards away from the street and the church, until it came to rest a few feet outside the zone of prohibition. Before a permit was issued, the City then passed a comprehensive zoning ordinance classifying a portion of the City as a class “B” residential district in which the sale of intoxicating beverages was prohibited. This ordinance was passed under the authority of Vernon’s Texas Code Ann., Penal Code Art. 667 — IOV2, which provides that “cities and towns may also designate certain zones in the residential section or sections of said cities and towns where such sales [of beer] may be prohibited.” No business establishment, including appellants’, was retroactively affected. The ordinance did not affect the preexisting commercial uses in the area so zoned, except that no business will be permitted to sell intoxicating beverages. Appellants contend that this action denies them an expected $500 a month profit, and note that other businesses in other areas are not so affected. Contending the City’s action is arbitrary, discriminatory and confiscatory, appellants assert the zoning ordinance is unconstitutional as applied.

This Court has noted previously that our review of zoning decisions is limited, and that in cases challenging the propriety of property classifications “[t]he only question which federal district courts may consider is whether the action ... is arbitrary and capricious, having no substantial relation to the general welfare.” South Gwinnett Venture v. Pruitt, 5 Cir., 1974, 491 F.2d 5, 7 (en banc); see also Higginbotham v. Barrett, 5 Cir., 1973, 473 F.2d 745, 747. The facts clearly establish a reasonable basis for the City’s decision. Not only is one church directly across the street from the location where appellants propose to sell beer, but three other churches and a school, as well as a number of residences, are located nearby. The City might be legitimately concerned about the presence of a liquor establishment and its accompanying traffic in the midst of homes, churches and a school. The Supreme Court has recently made clear that zoning decisions “addressed to family needs” are permissible ones.

The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion, and clean air make the area a sanctuary for people. Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S.Ct. 1536, 1541, 39 L.Ed.2d 797 (1974).

The City did not take from appellants something they previously had, nor limit or preclude a preexisting use. There thus is presented no element of confiscation. The contention that the ordinance is discriminatory because establishments elsewhere, including one located only two blocks from appellants’ station, are permitted to sell liquor is easily answered. “A nuisance may be merely the right thing in the wrong place, like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.” Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 118, 71 L.Ed. 303 (1926).

The decision of the lower court dismissing the complaint for want of a substantial federal question is Affirmed.


source: Caselaw Access Project

author: DYER, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James W. ERWIN, Defendant-Appellant.
    No. 74-2672.
    United States Court of Appeals, Fifth Circuit.
    Feb. 10, 1975.

      Charles D. Butts, Fred A. Semaan, San Antonio, Tex., for defendant-appellant.
    William S. Sessions, U. S. Atty., W. Ray Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
    Before BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   DYER, Circuit Judge:

James Erwin was convicted for possessing an unregistered sawed-off shotgun. He challenges the conviction on two grounds: first, that the shotgun evidence should have been suppressed because both arrest and search were invalid, and second, that the evidence of possession was insufficient to sustain his conviction. We hold that the motion to suppress should have been granted because the search was invalid, and therefore find it unnecessary to consider the sufficiency of the evidence.

While investigating the “pornography industry,” state and county officers made a legal search of a local theater and obtained information that Erwin was an officer in a corporation which distributed allegedly obscene movies. Based upon this information, they secured a warrant for Erwin’s arrest. On September 19, 1973, police, including San Antonio police officer Brown and district attorney’s investigator Collins, executed the warrant. They arrested another member of the alleged conspiracy to distribute obscene materials outside the apartment where both he and Erwin were staying. When police entered the apartment, Erwin and a Ms. Roquemore were seated on a couch in the living room watching television. Erwin was placed under arrest, and Collins made a cursory search of the rest of the apartment to see if anyone else was there. He found no one, and testified that Erwin and Ms. Roquemore posed no threat. They were not handcuffed or otherwise restrained, but if they wandered about, they were always accompanied by Officer Brown. When Erwin went to the back bedroom which he had been occupying to get a shirt and shoes, Officer Brown accompanied him and confiscated a pistol from the bedside table. They returned to the living room and Brown told Collins about the pistol. Investigator Collins then went back to the bedroom, where he discovered the shotgun on a shelf in the open closet. It was the second search, the one which produced the contraband item, which we now hold was illegal.

If either the arrest or the search were unlawful, the motion to suppress should have been granted. Here we assume without deciding that the arrest was lawful, in spite of a concededly defective warrant, because the officers had probable cause to believe that Erwin was involved in the conspiracy. Chimel v. California, 1968, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685; United States v. Morris, 5 Cir. 1973, 477 F.2d 657, 663. However, even assuming that the arrest was lawful, we find no justification for the weapon-producing search. The government attempts to justify it both as a search “incident to arrest” and as the seizure of an object in “plain view.” Neither of these theories, however, is applicable to the search in question.

In considering whether a warrantless search is properly “incident to arrest,” the inquiry focuses on the scope of the search. Vale v. Louisiana, 1970, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409. Such searches are allowed only to prevent the arrestee’s seizing a weapon or destroying evidence. The basic philosophy of Chimel controls: a search incident to arrest is limited to the person of the arrestee and to the area under his immediate control, from which he might be able to reach a weapon or evidence. It has never justified a general or exploratory search. In fact, aside from the cursory search for other persons, there is no justification for “routinely searching any room other than that in which an arrest occurs.” Chimel v. California, supra, 395 U.S. at 763, 89 S.Ct. at 2040.

Similarly, for a seizure to be constitutionally reasonable under the “plain view” theory, the officer must lawfully be in a place from which he sees a seizable item in plain view. He must have had

a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. Coolidge v. New Hampshire, 1971, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564.

The Supreme Court has made it clear that the plain view doctrine may not be used “to extend a general exploratory search from one object to another un: til something incriminating at last emerges.” Id. Yet this is precisely what Collins did. Upon finding the pistol, he extended the exploratory search until he found the incriminating shotgun.

In order to determine whether Investigator Collins, who seized the shotgun, had a legally justifiable reason for being where he was, we need only look to his testimony. Collins testified as follows:

Well, this being the third or the second weapon that had been found, I decided I better check for more weapons. There was a third party there, Miss Kathy Roquemore, and we didn’t know but what she had a weapon, and so I went back into the bedroom and I glanced up in an open closet, and there was a box of 410 shotgun shells on the shelf. (Emphasis supplied)

On cross-examination, Collins was asked why, if the defendant posed no threat, he, Collins, chose to go back to the bedroom a second time. He replied: “I went there to see if any other weapons were there.” Asked by what authority he made this second search, he replied, “just common sense. ... I felt it was necessary to determine whether or not there was any further threat after we left.” Asked how they could be threatened after they left, he responded: “This Kathy Roquemore would still be there. We didn’t have a warrant for her.” And who would be left for her to shoot? Collins could only reply that he did not know.

This testimony by the government’s own witness is fatal to its case. Collins admits that he was searching in the bedroom for other weapons, even though Erwin was- in the living room and constantly attended by Officer Brown. Erwin posed no threat, and in no way could the gun be said to have been within his reach. Collins knew there were no other persons in the apartment, so there could be no reasonable fear of anyone else using a weapon or destroying evidence. Nor can the search be justified by the fact that Erwin was not handcuffed and was free to roam about. There is no question that Erwin was under arrest, and it was entirely in police discretion how far his movement would be restricted. They cannot allow the arrestee freedom of movement, and then later use that freedom to justify an exploratory search of the dwelling. Any argument as to whether the gun was in “plain view” is irrelevant if the officer was not lawfully in the room being searched. After having made a cursory check for other persons, Collins had no lawful reason for returning to the back bedroom to search further. The evidence garnered on the illegal search should have been suppressed.

Reversed.


author: McGOVERN, District Judge:

text:
    Phoebe Wilson DILLON, Plaintiff-Appellant, v. ANTLER LAND COMPANY OF WYOLA, a Montana Corp., et al., Defendants-Appellees. ANTLER LAND COMPANY OF WYOLA, a Montana Corp., et al., Defendants-Cross-Appellants, v. Phoebe Wilson DILLON, Plaintiff-Cross-Appellee.
    Nos. 72-2176, 72-2205.
    United States Court of Appeals, Ninth Circuit.
    Nov. 6, 1974.
    Thomas E. Towe (argued) of Towe, Neely & Ball, Billings, Mont., for plaintiff-appellant.

      Cale Crowley (argued), of Crowley, Kilbourne, Haughey, Hanson & Gallagher, Billings, Mont., Glen R. Goodsell, Atty. (argued), Land and Natural Resources Div., Dept, of Justice, Washington, D. C., for defendants-appellees.
    Before CHAMBERS and KOELSCH, Circuit Judges, and McGOVERN, District Judge.

       The Honorable Walter T. McGovern, United States District Judge for the Western District of Washington, sitting by designation.

   McGOVERN, District Judge:

In dispute here is title to 1,040 acres of grazing land on the Crow Indian Reservation in the State of Montana. Appellant Phoebe Wilson Dillon, then a minor Crow Indian, was awarded this land by trust patents in 1923 and 1924. Her father managed the land until she became of age. Not long after Appellant received her allotments, the land was leased to Matt Tschirgi, who later incorporated under the name of Antler Land Company. In 1949, Mrs. Dillon, at age 34, applied for and received competency status and undertook her own lease negotiations. She immediately increased her income from 14.32 cents per acre to 50 cents per acre.

On February 25, 1955, Mrs. Dillon applied for a fee patent. The application stated that the purpose was to enable her to sell the land. So far as the record shows, the only false statement made in the application for patent was that no person had asked Appellant to apply for patent in fee. This false representation was allegedly made because Tschirgi advised Appellant that the patent in fee would not be issued if he were shown to be involved.

On May 21, 1955, Appellant agreed in writing to sell the land to Antler Land Company for $7,280 if and when she received the patent in fee, although such a contract for the sale of trust land is specifically prohibited by 25 U.S.C. § 348. The fee patent application was approved by the Bureau of Indian Affairs on October 3, 1955, and a fee patent dated September 19, 1955, for the 1,040 acres was delivered to Appellant. On October 6, 1955, Appellant executed and delivered a warranty deed to Antler Land Company, and received $3,711.00 in cash. The balance of the $7,280 purchase price was accounted for by the items of advances mentioned in the May 21, 1955 contract, including a deduction for prepaid lease rentals. 25 U.S.C. § 349 mandates that patent in fee land shall not be liable to the satisfaction of any debt contracted prior to the issuing of such patent. The patent in fee and deed were recorded on October 14, 1955.

Additional facts disclosed at the trial indicate that Tschirgi assured Appellant on May 21, 1955 that if the Bureau of Indian Affairs appraised her land at more than $7 per acre, he would pay her the dollar difference. On August 23, 1955, the land was appraised at $10 per acre, but Tschirgi refused to pay her the $3 difference per acre.

On the date of the conveyance, Antler Land Company was the owner of more than 1,920 acres of grazing land within the Crow Reservation and all the successors in interest of Antler Land Company (except Trustee Murtha) were likewise owners of more than 1,920 acres of reservation land at the time they acquired interest in the subject land.

On July 20, 1970, approximately fifteen years after the conveyance, Mrs. Dillon filed a complaint in United States District Court for the District of Montana against the Antler Land Company, the Little Horn Land and Livestock Company, the Union Bank and Trust Company as Executor of the Estate of Bertha Tschirgi, Rex Hibbs as Executor of the Estate of F. M. Tschirgi, Francis J. Murtha as Trustee for Trustees of Central States, the Southeast and Southwest Areas Pension Fund, and the United States of America.

The complaint states two claims for relief. First, Mrs. Dillon seeks a decree adjudging the contract of May 21, 1955, and the deed of October 6, 1955, null and void, and quieting title to the land in herself or in the United States as her trustee and to recover rents and profits. In support of her first claim, three theories are urged: (1) Fraud that vitiates the patent in fee from the United States to Appellant and the deed from her to Antler Land Company; (2) That while the land was in trust status, Appellant executed a contract to convey it in contravention of 25 U.S.C. § 348; and (3) That Antler Land Company on the date of delivery owned lands in excess of the acreage limitations contained in Section 2 of the Crow Indian Allotment Act of 1920, 41 Stat. 751. Motions for Summary Judgment were directed to the first claim.

In her second claim, Mrs. Dillon seeks to recover $33,000.00, the alleged current fair market value of the land, in damages, under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), alleging that agents of the United States, by refusing to take action in her behalf with respect to the 1,040 acres, breached the duties enjoined on them by 25 U.S.C. § 185. Pursuant to Rule 12(b) F.R.Civ.P., the District Court considered the answer of the United States as a Motion for Summary Judgment.

The District Court held that the October 6, 1955 deed was voidable on the first and second theories advanced, and also void under Section 2 of the Crow Act of 1920 as applied to the purchaser. It further held, however, that the rights which Appellant had to avoid her deed on the grounds of fraud and because of the violation of 25 U.S.C. § 348, and the right, if she had any right to avoid the deed by reason of the violation of Section 2 of the Crow Act of 1920, were all barred by the Montana Statutes of Limitation, and that in the instant circumstances, Appellees have acquired title by adverse possession as against Appellant. Finally, the Court ruled that Appellant’s second claim must also fail because there is no duty imposed by 25 U.S.C. § 185 upon the United States to litigate the cases arising out of the dealing of emancipated Indians with fee lands, and, because in any event, the duty to sue could never be anything but a discretionary duty to which the Federal Tort Claims Act does not apply.

Appellant Dillon presents three assignments of error: (1) The holding of the District Court that the Montana Statutes of Limitation operate herein to bar any recovery by her; (2) The granting by the District Court of Summary Judgment in favor of the United States on Appellant’s second claim, sua sponte, without notice to Appellant and without a reasonable opportunity to present material pertinent thereto as required by Rule 12(b); and (3) The conclusion of the District Court that any duty to sue imposed on the United States by 25 U.S.C. § 185 could never be anything but discretionary and therefore outside the purview of the Federal Tort Claims Act.

Appellees assign as error the holding that the subject deed of October 6, 1955, was void under Section 2 of the Crow Act of 1920.

This appeal raises troublesome questions, but that Montana law governs with respect to Appellant’s property rights herein is not one of them. 25 U.S.C. § 349 relied on by the District Court in holding that Appellant’s first claim is barred by the Montana Statutes of Limitation could scarcely be more explicit in this respect. It provides:

“At the expiration of the trust period and when the lands have been conveyed to the Indians by patent in fee, as provided in section 348 of this title, then each and every allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside; and no Territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protection of the law: Provided, That the Secretary of the Interior may, in his discretion, and he is authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cáuse to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed and said land shall not be liable to the satisfaction of any debt contracted prior to the issuing of such patent: Provided further, That until the issuance of fee-simple patents all allottees to whom trust patents shall be issued shall be subject to the exclusive jurisdiction of the United States: . . . . ” (Italic ours)

Appellant’s argument and authorities on this issue consistently represent the natural concern of Congress and the courts to protect Indians in the possession, enjoyment and authorized conveyance of restricted lands but the acreage here involved falls outside that category. It is the subject of a patent in fee, the effect of which was to remove restrictions on its alienation and provide that the allot-tee should have the benefit of and be subject to the laws of the State of Montana. Appellant’s contention that Section 349 is to be read to mean that only lands conveyed after the expiration of the trust period are expressly subject to state law is without merit.

In the trial court and here, Mrs. Dillon makes a strong attack on the validity of her deed to Antler Land Company. That argument also misses the point. The judgment which we affirm was not that Appellant’s case against her deed lacked merit, but rather, that it is barred for lack of prosecution.

In her second claimed assignment of error, Appellant points out that the Defendant United States answered the Complaint, inter alia, in the language of Rule 12(b)(6). Defendants other than the United States, in a Separate Answer and a second Separate Answer and Cross-Complaint, denied Plaintiff Dillon’s claims for relief against the United States or anyone else, denied that the Federal Tort Claims Act encompassed the claim for relief alleged, and moved for dismissal. The District Court treated the Motion to Dismiss the second claim as a Motion for Summary Judgment, and thereupon granted the Motion. This the Appellant assigns as error, charging that the action of the District Court deprived Appellant of notice and an opportunity to be heard with respect to its second claim, as provided for in the last sentence of Rule 12(b).

Appellant’s second claim alleged a duty on the part of the United States to assert her first claim on her behalf. Her contention that she has been deprived of the opportunity to argue the question of the Government’s obligation to bring this action is contradicted by the record of the proceedings below. The issue was clearly before the District Court. In her original Memorandum and her Supplemental Citations of Authority to the trial court, Appellant developed at length her contentions with respect to federal jurisdiction, the responsibility of the United States to its Indian wards, and her exemption from state statutes when bringing an action which the United States as trustee allegedly had an “absolute duty” to bring under 25 U.S.C. § 185. The District Court’s disposition of Appellant’s second claim by way of Summary Judgment was made in spite of those contentions and was neither prejudicial nor erroneous.

Appellant’s third assignment of error attacks the trial court ruling by summary judgment against her second claim on the grounds that 25 U.S.C. § 185, which provides:

“Whenever any Indian, being a member of any band or tribe with whom the Government has or shall have entered into treaty stipulations, being desirous to adopt the habits of civilized life, has had a portion of the lands belonging to his tribe allotted to him in severalty, in pursuance of such treaty stipulations, the agent and superintendent of such tribe shall take such measures, not inconsistent with law, as may be necessary to protect such Indian in the quiet enjoyment of the lands so allotted to him. R.S. § 2119.”

imposes no duty upon the United States to litigate the cases arising out of the dealings of emancipated Indians with fee lands, and, secondly, because in any event, the duty to sue could never be anything but a discretionary duty to which the Federal Tort Claims Act does not apply. The issue underlying this assignment of error is well stated by Appellant: Does 25 U.S.C. § 185 impose a mandatory duty on the United States to litigate cases arising out of the dealings of emancipated Indians with fee lands, the breach of which is actionable under the Federal Tort Claims Act?

Standing against the contentions of Appellant on this issue is the logic and the weight of authority in support of the proposition adopted by the trial court, namely, that issuance of the fee patent freed the United States from its duties and obligations to the Indians with respect to the lands it theretofore held in trust and defined the new status of those Indians in their relation to the State. See Montana Power Company v. Rochester, 127 F.2d 189, 192 (9th Cir., 1942). We concur in the ruling of the trial court.

Appellant does not separately assign as error the holding of the District Court that Appellees under the instant circumstances have acquired title as against Appellant to the subject land by adverse possession. Instead, Appellant’s arguments on the question of adverse possession are stated in support of reasons advanced against the applicability of the Montana Statutes of Limitation. Indeed, Appellant’s position with respect to adverse possession necessarily and in fact raises the same fundamental questions raised by her position on the applicability of the Montana Statutes of Limitation, to wit: Does federal law in these circumstances prohibit the acquisition of fee patent Indian land by adverse possession? We hold that it does not. 25 U.S.C. § 349 not only authorizes but requires the application of Montana law in the instant circumstances and, therefore, the issues relative to adverse possession are resolved accordingly.

Finally, Appellees appeal from the ruling that the deed of October 6, 1955 was void as in violation of Section 2 of the Crow Act of 1920.

The District Court held that pursuant to Section 2 of the Crow Act of 1920, Antler Land Company on October 6, 1955, already in possession of Crow land in excess of 1,920 acres, was ineligible to take the 1,040 acres which was the subject of the warranty deed herein. We note that the District Court in its Opinion and Order expressly declined to decide whether an Indian who sold to a buyer ineligible to take land by reason of Section 2 of the Crow Act may bring an action to recover the land. Having otherwise disposed of the case on appeal, we, too, decline to needlessly pass on such issue.

The judgment of the trial court is affirmed.

      . R.C.M. § 93-2504 No action for the recovery of real property, or for the possession thereof, can be maintained, unless it appears that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the property in question within five years before the commencement of the action.
      R.C.M. § 93-2607 provides for a two-year limitation period.
      Subsection (4): An action for relief on the ground of fraud or mistake, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.


author: TALBOT SMITH, Senior District Judge.

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. HICKEY-MITCHELL COMPANY, Defendant-Appellee.
    No. 74-1373.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 15, 1974.
    Decided Dec. 11, 1974.

      Josephine A. Trevathan, Atty., E.E. O.C., Washington, D. C., for plaintiff-appellant.
    F. Douglas O’Leary, Moser, Marsalek, Carptenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, Mo., for defendant-ap-pellee.
    Before LAY and HEANEY, Circuit Judges, and TALBOT SMITH, Senior District Judge.

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

   TALBOT SMITH, Senior District Judge.

The Equal Employment Opportunity Commission (EEOC) appeals from an order of the district court entered May 9, 1974 dismissing without prejudice its action against the Hickey-Mitchell Company (hereinafter the Employer) for violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (Supp. II, 1972), amending 42 U.S.C. § 2000e (1970). After an evidentiary hearing the court found that the Commission had failed to follow its own conciliation procedures and, consequently, had failed to prove satisfaction of the statutory condition to the maintenance of this action— that it had been “unable to secure from the respondent a conciliation agreement acceptable to the Commission.” ' 42 U.S.C. § 2000e — 5(f)(1) (Supp. II, 1972). Specifically, the court found the Commission had not mailed the notice required by 29 C.F.R. § 1601.23 (1974), which provides:

Should a respondent fail or refuse to confer with the Commission or its representative, or fail or refuse to make a good faith effort to resolve any dispute, the Commission may terminate its efforts to conciliate the dispute. In such event, the respondent shall be notified promptly, in writing, that such efforts have been unsuccessful and will not be resumed except upon the respondent’s written request within the time specified in such notice.

Before us the Commission does not dispute that the regulation was not followed, but urges that in the circumstances of this case, 1) compliance with the regulation was not required, and, alternately, 2) noncompliance was not prejudicial to the Employer. Such circumstances, as found by the trial court, we here summarize. On March 15, 1972 Margo Owens filed a charge with the Commission alleging that because of her race the Employer paid her less than a white employee doing the same work. The Commission’s investigation of these charges in August, 1972 ultimately resulted in the Commission’s determination on November 30, 1972 that reasonable cause existed to believe that the Employer had engaged in an unlawful employment practice. A copy of this determination, including a “Notice of Conciliation Process” and an invitation to join with the Commission “in a collective effort toward a just resolution of this matter,” was mailed to the Employer December 6, 1972. In January, 1973 the Employer’s attorney, F. Douglas O’Leary, spoke by telephone with James Helm, a Commission official, concerning conciliation of the Owens charge. Mr. O’Leary indicated little willingness to conciliate the charge. At Mr. Helm’s request, Mr. O’Leary wrote Mr. Helm a letter dated January 12, 1973 wherein Mr. O’Leary declined to engage in conciliation with the Commission. No further contact occurred between the parties until this action was instituted May 9, 1973.

We are thus squarely confronted with the issue of whether the Commission’s failure to give the notice required by 29 C.F.R. § 1601.23 (1974), that the Commission considers the conciliation efforts unsuccessful and intends to terminate them, should bar the prosecution of the Commission’s civil action under 42 U.S.C. § 2000e-5(f)(l) (Supp. II, 1972). We are not without guidance in this area; two district courts in addition to the court below have considered the issue and resolved it against the Commission. EEOC v. United States Pipe & Foundry Co., 375 F.Supp. 237, 246-248 (N.D.Ala.1974); EEOC v. Louisville & Nashville R.R., 368 F.Supp. 633, 638-639 (N.D.Ala.1974); EEOC v. Firestone Tire & Rubber Co., 366 F.Supp. 273 (D.Md. 1973). We may reject out of hand the Commission’s contention that the regulation is not applicable to the situation before us. The argument that the limited purpose of the regulation is to “make certain that a respondent’s failure to engage in conciliation is not the result of inadvertence or neglect” ignores the fact that the regulation applies in terms to a respondent’s “fail[ure] or refus[al]” to conciliate. That the Employer intentionally and knowingly declined to conciliate does not take the case out of the ambit of the regulation.

More serious, however, is the Commission’s claim that the January 12 letter conclusively demonstrates its inability to secure a conciliation agreement within the meaning of 42 U.S.C. § 2000e — 5(f)(1) (Supp. II, 1972), and that the failure to give the § 1601.23 notice is at most a technical error which did not prejudice the Employer. Resolution of this issue requires a brief examination of the purpose of the regulation and the function of conciliation, generally, in the enforcement scheme of Title VII.

As originally enacted Title VII did not empower the Commission to sue employers to enforce the Act. Rather, “[c]oop-eration and voluntary compliance were selected as the preferred means for achieving” equality of employment opportunities. Voluntary compliance proved elusive, however, as more than half of the Commission’s conciliation efforts were deemed unsuccessful. Consequently, Congress enacted the Equal Employment Opportunity Act of 1972 which amended Title VII to permit Commission suits. The statutory mandate that the Commission attempt conciliation was not abandoned, however, and the Act expressly conditions the Commission’s powers of suit on its inability to “secure from the respondent a conciliation agreement acceptable to the Commission.” As the House sponsor of the bill stated:

The conferees contemplate that the Commission will continue to make every effort to conciliate as is required by existing law. Only if conciliation proves to be impossible do we expect the Commission to bring action in Federal district court to seek enforcement.

Indeed, it is essential, as one observer notes, that negotiation remain the primary mode of enforcement, lest the Commission’s energies be dissipated in interminable litigation in the Federal courts, which, whatever the outcome, would be detrimental to efficient and effective implementation of Title VII.

Although the lower federal courts have differed over whether the fact of failure of conciliation must be affirmatively pleaded by the Commission, it is beyond dispute that a Commission lawsuit brought before any attempt at conciliation is premature. EEOC v. Westva-co Corp., 372 F.Supp. 985, 991-993 (D.Md.1974); EEOC v. E. I. DuPont de Nemours & Co., 373 F.Supp. 1321, 1333-1334 (D.Del.1974). “The Commission’s power of suit and administrative process [are not] unrelated activities, [but] sequential steps in a unified scheme for securing compliance with Title VII.”

Against this background we must review the Commission’s breach of 29 C.F.R. § 1601.23 (1974) providing for notice to the respondent of the imminent termination of the conciliation process. We agree with the court below that the regulation affords even the most uncooperative and recalcitrant respondent “the right to be told that it has one last chance to attempt conciliation.” In view of the central role of conciliation in the scheme of Title VII we cannot say the regulation is merely “technical.” This is an area where animosities run high and negotiations may be difficult to initiate. The regulation reflects formal recognition by the Commission of the need to keep the doors of communication open even where, as here, it has received a flat refusal to engage in conciliation discussions.

We are, of course, aware of the general principle that “[i]t is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it. The action of either in such a case is not reviewable except upon a showing of substantial prejudice to the complaining party.”

American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 539, 90 S.Ct. 1288, 1292, 25 L.Ed.2d 547 quoting this court in NLRB v. Monsanto Chemical Co., 205 F.2d 763, 764 (8th Cir. 1953). However, the Commission offers no acceptable justification for its breach of the regulation in this case, and we cannot conclude that the Employer was not prejudiced by it. The Employer’s letter refusing to conciliate is, as we have noted, the event which should have triggered the application of the regulation, not the excuse for ignoring it. Compliance with the regulation, a last gesture by the Commission of a conciliatory attitude, may well give pause to the most (theretofore) recalcitrant employer, now indubitably faced with expensive and time-consuming litigation, and thus lead to a resolution of these disputes in the congressionally preferred forum.

Affirmed.

      . The Hon. John F. NANGLE, United States District Judge, Eastern District of Missouri.

      . A previous ruling of the court is found in EEOC v. Hickey-Mitchell Co., 372 F.Supp. 1117 (E.D.Mo.1973). There the court refused to dismiss the complaint on the ground that it had not been filed within 180 days of the filing of the charge, holding that the Act did not so require. Accord, EEOC v. Cleveland Mills Co., 502 F.2d 153 (4th Cir. 1974). It did, however, dismiss Count II of the complaint (which alleged sex discrimination) as not within the proper scope of an investigation of the original charge (which alleged racial discrimination). The court also granted a protective order in favor of the Employer, delaying discovery until the court resolved “the jurisdictional issue of whether the plaintiff was unable to secure an acceptable conciliation agreement.” 372 F.Supp. at 1123.
      In view of our resolution of the issues herein, we need not reach and we express no opinion on the 180 day issue.

      . 42 U.S.C. § 2000e-5 (Supp. II, 1972) provides in pertinent part:
      (a) * * *
      The Commission is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful employment practice as set forth in section 2000e-2 or 2000e-3 of this title.
      (b) * * *

        Whenever a charge is filed by or on behalf of a person claiming to be aggrieved * * * alleging that an employer * * has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge * * * on such employer * * * (hereinafter referred to as the “respondent”) within ten days, and shall make an investigation thereof. * * If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. * * *
      * * * * * *
      ^ * * *
      (1) If within thirty days after a charge is filed with the Commission * * * the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent * * * named in the charge. * * *

      . The Notice of Conciliation Process states in part:
      [A] Commission representative will contact each party to ascertain their willingness to engage in settlement discussions and, if the parties are willing, join with them in a collective effort to arrive at a just settlement. Should the Respondent decline to enter into settlement discussions, or should the Commission representative for any reason be unable to secure a settlement acceptable to the District Director, he shall so inform the parties in writing and advise them at that time of the court enforcement alternatives available to the Charging Party and the Commission.

      . The body of the letter reads:
      This will confirm our telephone conversation. My client, Hickey-Mitchell Company, sees no purpose in attempting any conciliation for the reason that we feel our handling of this matter was entirely correct and the so-called finding of the District Director is without any basis whatever. Further, even if this were a matter that might be subject to conciliation, it appears to us that the attitude and methods of the local representatives of the Commission are such that no employer would receive fair treatment.
      We would be delighted to have some procedural method available within the Commission to appeal this decision, but I understand there is no such procedure available. If the Commission or any other person wants to take further action, we would assume that such action will take place in a forum where there would be a fair and impartial hearing by persons who do not have a preconceived result in mind while considering the evidence.

      . 29 C.F.R. § 1601.23 (1974) (emphasis added). We note that in another context the Commission has apparently argued that § 1601.23 “applies only to non-cooperative and recalcitrant respondents.” EEOC v. United States Pipe & Foundry Co., 375 F.Supp. 237, 246 (N.D.Ala.1974).

      . 42 U.S.C. § 2000e-5(f)(l) (Supp. II, 1972) provides in part:
      If * * * the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent * * * named in the charge.

      . Act of July 2, 1964, Pub.L. 88-352, tit. VII, 78 Stat. 253 (codified at 42 U.S.C. § 2000e (1970).

      . Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974).

      . S.Rep.No.92^415, 92nd Cong., 1st Sess. 5 (1971); see H.Rep.No.92-238, 92nd Cong., 1st Sess. 8-9 (1971).

      . Act of March 24, 1972, Pub.L.No.92-261, § 4, 86 Stat. 105, amending 42 U.S.C. § 2000e-5 (1970) (codified at 42 U.S.C. § 2000e-5(f)(l) (Supp. II, 1972)). See generally Sape & Hart, Title VII Reconsidered: The Equal Employment Opportunity Act of 1972, 40 Geo.Wash.L.Rev. 824 (1972).

      . 42 U.S.C. § 2000e-5(b) (Supp. 11, 1972), amending 42 U.S.C. § 2000e-5(a) (1970) provides in part:
      If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.

      . 42 U.S.C. § 2000e-5(f)(l) (Supp. II, 1972).

      . 118 Cong.Rec. 7563 (1972) (remarks of Congressman Perkins.)

      . Blumrosen, The Crossroads for Equal Employment Opportunity: Incisive Administration or Indecisive Bureauracy, 49 Notre Dame L. 46, 47-48 (1973). Blumrosen notes a disturbing change in the Commission since the 1972 amendment; it has hired hundreds of lawyers while leaving vacant the post of Chief of the EEOC Office of Conciliation. Id. at 48, 58-59.

      . E. g., EEOC v. Eagle Iron Works, 367 F.Supp. 817, 822-823 (S.D.Iowa 1973); EEOC v. Mobil Oil Corp., 362 F.Supp. 786, 788-790 (W.D.Mo.1973); EEOC v. Guaranty Sav. & Loan Ass’n, 369 F.Supp. 36 (N.D.Ala.1973); EEOC v. W. Elec. Co., 364 F.Supp. 188 (D.Md.1973).

      . EEOC v. E. I. DuPont de Nemours & Co., 373 F.Supp. 1321, 1333 (D.Del.1974).

      . Note 6, supra and accompanying text.

      . Memorandum Opinion at 7, quoting EEOC v. Firestone Tire & Rubber Co., 366 F.Supp. 273, 276 (D.Md. 1973); see EEOC v. United States Pipe & Foundry Co., 375 F.Supp. 237, 246 (N.D.Ala. 1974); EEOC v. Louisville & Nashville R.R., 368 F.Supp. 633, 638 (N.D.Ala. 1974).

      . Cf. Gardner, The Development of the Substantive Principles of Title VII Law: The Defendant’s View, 26 Ala.L.Rev. 1, 7 (1973).

      . See generally Note, Violations by Agencies of Their Own Regulations, 87 Harv.L.Rev. 629 (1974).


author: WILLIAM E. MILLER, Circuit Judge.

text:
    William Brady TRIGG, Petitioner-Appellant, v. STATE OF TENNESSEE, Respondent-Appellee.
    No. 74-1515.
    United States Court of Appeals, Sixth Circuit.
    Dec. 11, 1974.
    Certiorari Denied Feb. 18, 1975.
    See 95 S.Ct. 1148.

      Robert A. Lanier, Memphis, Tenn. (Court appointed), for petitioner-appellant.
    Milton P. Rice, Atty. Gen. of Tenn., Nashville, Tenn., W. Henry Haile, David L. Raybin, Nashville, Tenn., for respondent-appellee.
    Before CELEBREZZE, PECK and MILLER, Circuit Judges.
   WILLIAM E. MILLER, Circuit Judge.

The petitioner, William Brady Trigg, appeals the dismissal of his petition for a writ of habeas corpus. After conducting a full evidentiary hearing, the district court found that Trigg had not been denied his right to a speedy trial and thus was not entitled to habeas corpus relief. Involved are the dimensions of the Sixth Amendment right to a speedy trial when asserted by a federal prisoner under a detainer for the alleged commission of a separate state crime. The facts of the litigation are lengthy and complicated but a summary of the pertinent events is given below.

In July 1964 the petitioner was arrested in Chicago, Illinois, and charged with violating the Federal Narcotics Act. While the petitioner was free on bond in Chicago, he was indicted in November 1965 by the Grand Jury of Shelby County (Memphis) Tennessee for armed robbery. Trigg did not become aware of this indictment until several years later. In June of 1966, Trigg was convicted on the federal drug charges. He was sentenced to six concurrent twenty-year terms and incarcerated in the United States Penitentiary at Leavenworth, Kansas. It was not until September 1967 that the Tennessee officials discovered that Trigg had been so incarcerated. Upon communicating with prison authorities, Tennessee officials learned that Trigg was eligible for release in 1979 but was already subject to an Illinois detainer. The State of Tennessee promptly placed its own detainer on the petitioner.

Soon thereafter, prison officials at Leavenworth informed Trigg of the Tennessee detainer. According to the petitioner’s testimony, he wrote various Tennessee state officials inquiring about the detainer and the underlying charges. At some point, Trigg wrote the office of the Shelby County District Attorney. In March of 1968, an administrative assistant in this office replied to the petitioner’s letter, informing him of the District Attorney’s policy to return for trial all persons charged with committing state crimes in Shelby County. Nine months later, in January 1969, a motion was filed in Trigg’s behalf to dismiss the state court charge against him on the ground that he had been denied the right to a speedy trial.

By letter dated February 11, 1969, the Shelby County District Attorney initiated what became protracted negotiations with the federal prison authorities for the return of Trigg to Tennessee to stand trial on the Shelby County indictment. For the next two years, officials of the state and federal government were deadlocked as to the appropriate legal procedure for the return of Trigg to Tennessee. First, because of claimed insufficient funds, the State was reluctant to pay for United States Marshals to accompany and guard Trigg on his trips to and from Tennessee and during his trial. Instead, Tennessee sought permission to use its own agents to transport Trigg. Secondly, the State wanted the petitioner to sign a waiver of extradition before it would endeavor to take custody of him. As early as May 27, 1969, the State was informed by the federal authorities that it was established policy that only United States Marshals could guard a federal prisoner while away from the institution and, furthermore, that it was unnecessary to require a waiver of extradition when proceeding under a writ of habeas corpus ad prose-quendum. Nevertheless, the state officials persisted in their position that Trigg would be required to waive extradition. In the summer of 1969, federal prison authorities presented Trigg with the waiver form, but he refused to sign it.

A few months later, Trigg commenced a federal habeas corpus action in the district court in Kansas, an action in which the Shelby County District Attorney’s Office intervened. Trigg’s petition was dismissed and the dismissal was affirmed on appeal. Trigg fared no better in Shelby County Criminal Court as his January 1969 motion to dismiss was summarily overruled the following October. During 1970, state efforts appear to have subsided but they were revived in the spring of 1971.

Apparently proceeding under the Interstate Agreement on Detainers Act (18 U.S.C. Appendix), the State finally succeeded in returning Trigg with its own agents, in the summer of 1971. He was then tried and convicted in the Tennessee state court on December 8, 1971, and he was given a ten year sentence to run concurrently with the federal and Illinois sentences. This conviction was affirmed a year later by the Tennessee Court of Criminal Appeals. In August 1973, the petitioner initiated the present habeas corpus action in the court below. The denial of relief by the district court resulted in the appeal now before us.

The Sixth Amendment to the United States Constitution provides that all criminal defendants are entitled to a speedy trial. In 1967 the requirement was held to be applicable to state criminal proceedings through the Fourteenth Amendment. Two years later, the Supreme Court held that a state must “make a diligent, good-faith effort” to return a federal prisoner who demands a speedy trial of any pending state charges. Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 21, 575 L.Ed.2d 607 (1969). In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Court made its most thorough examination of the right to a speedy trial. The Court eschewed an inflexible rule and instead adopted an ad hoc approach requiring the balancing of at least four factors: the length of the delay, the defendant’s assertion of the right, the reason for the delay, and the prejudice to the defendant. Id. at 530, 92 S.Ct. 2182. The Court emphasized that none of these factors was “either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.” Id. at 533, 92 S.Ct. at 2193; see Moore v. Arizona, 414 U.S. 25, 26, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973). On the contrary, these were but four related factors to be considered along with all the other relevant circumstances. Barker, 407 U.S. at 533, 92 S.Ct. 2182. In order to assess the merits of the petitioner’s claim, we must analyze the facts of this case in view of the Barker factors.

Length of delay

The parties disagree about the precise point in time when the right attached and from which the delay should be measured. We do not think it essential to Our decision to resolve this dispute since the length of delay is primarily a “triggering mechanism.” Barker, 407 U.S. at 530, 92 S.Ct. 2182. “The passage of time in and of itself does not constitute denial of a speedy trial.” United States v. Beard, 381 F.2d 325, 328 (6th Cir. 1967); see United States v. La Borde, 496 F.2d 965 (6th Cir. 1974) (per curiam). When considering the type of crime involved, the delay must be long enough that some prejudice can be presumed. Barker, 407 U.S. at 530—531, 92 S.Ct. 2182, 33 L.Ed.2d 101. Once this threshold determination has been made, the other mitigating or aggravating factors are weighed in order to decide the constitutionality of the delay. See Wallace v. Kern, 499 F.2d 1345, 1349-1350 (2d Cir. 1974). In this case the State of Tennessee admits to a delay of approximately two years. Because of the nature of the crime involved, we think that this delay is sufficiently long to compel the Court to examine the other factors relevant to the right to a speedy trial. Barker, 407 U.S. at 531, 92 S.Ct. 2182, 33 L.Ed.2d 101.

Reason for the delay

The main reason for the lengthy delay was the State’s effort to return the petitioner for trial at the least possible expense to itself. The duration of the delay was extended further by the State’s inability to agree with the federal government about the proper legal procedure necessary to effectuate the return. The State of Tennessee urges that because the law with regard to speedy trial was unsettled during that period, it was uncertain about the scope of its duty to a federal prisoner. As a result, the State argues that it had neither the funds nor the methods to return the petitioner immediately upon his request. We note that the various state officials were not consistent in their efforts to gain custody of Trigg. While the lack of sufficient funds may have contributed to the delay, we cannot say that such lack was the sole reason. Cf. Beck v. United States, 422 F.2d 1037 (5th Cir. 1971). The State acted in good faith, but it did not make a particularly diligent attempt to settle its two year controversy with federal prison officials. Thus the State of Tennessee must bear the primary responsibility for the inordinate delay in returning the petitioner for trial.

The defendant’s assertion of the right

There is no real dispute that the petitioner asserted his right to a speedy trial when he filed his motion to dismiss in the Shelby County Criminal Court. This formal motion, his earlier letters to state officials inquiring about the detain-er, an alleged “informal” motion to dismiss and a federal habeas corpus action brought in Kansas, all indicate Trigg’s desire to exercise his right to a speedy trial. See generally Barker, 407 U.S. at 523-530, 92 S.Ct. 2182.

Prejudice to the defendant

The remaining determination is the amount of prejudice suffered by the defendant because of the delay of his trial. Like the other criteria above, prejudice is to be weighed according to the factual circumstances of the case. Barker, 407 U.S. at 532-533, 92 S.Ct. 2182. Of the four factors to be assessed, prejudice to the defendant is the most critical one. United States v. Reynolds, 489 F.2d 4, 7 (6th Cir. 1973). “Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect.” Barker, 407 U.S. at 532, 92 S.Ct. 2182, 2193. These interests of the defendant are: to prevent oppressive pretrial incarceration; to minimize anxiety and concern of the accused; and to limit the possibility that the defense will be impaired. Ibid.

According to the Barker decision, the most important of these interests is the possible impairment of a defense. At the evidentiary hearing, Trigg testified that had he been brought to trial more promptly, he would probably have been able to establish his whereabouts during the period in question. Yet, this vague allegation of a potential alibi defense does not indicate any serious injury to the petitioner’s interests. By contrast, the defendant in Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970), was definitely prejudiced by the death of his purported alibi witness who died during the long delay. In his motion to quash the information, Dickey alleged both the anticipated testimony and the specific identity of the deceased witness. Id. at 35 n. 5, 90 S.Ct. 1564; cf. United States v. Martinez, 498 F.2d 464, 465-466 (6th Cir. 1974).

The Supreme Court in Barker identified a second interest as the prevention of oppressive pretrial incarceration. This is inapposite here because the petitioner was already serving a federal sentence when he began to contest the state detainer. However, the Supreme Court has recognized that convicted defendants may suffer prejudice peculiar to their situation. First, an outstanding detainer may subject the defendant to tighter security or may foreclose him from receiving the benefits of parole and rehabilitation. See Strunk v. United States, 412 U.S. 434, 439, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Moore, 414 U.S. at 27, 94 S.Ct. 188. According to the petitioner, he was deprived of better living accommodations and job training because of the Tennessee detainer. However, we find that he was also subject to an outstanding Illinois detainer that was only recently dismissed, several years after his trial on the Shelby County offense. Since there was no showing that two detainers were any more prejudicial to the petitioner’s privileges and opportunities than a single one, we cannot attribute any significant prejudice to the mere existence of the Tennessee detainer.

A defendant already in prison also can be injured by a trial delay that prevents him from receiving a sentence at least partially concurrent with the one he is serving. See Smith, 393 U.S. at 378, 89 S.Ct. 575. We recognize that a defendant who is in prison has a significant interest in serving concurrently any other sentences he might have. However, in this case this is a matter of degree since Trigg’s Tennessee sentence was made to run concurrently with his federal time. The petitioner’s complaint is that had he been tried sooner, more of his sentence would have been served concurrently. We do not consider this claim to be unduly speculative in light of the Tennessee law at the time of sentencing. The petitioner was prejudiced in that he probably did lose some concurrent time, but he was not completely denied the possibility of concurrent sentences. See Smith, 393 U.S. at 378, 89 S.Ct. 575.

The last interest identified by the Supreme Court was the minimization of the anxiety and concern of the accused. Barker, 407 U.S. at 532, 92 S.Ct. 2182; see Smith, 393 U.S. at 379, 89 S.Ct. 575. This Court, of course, recognizes that an outstanding detainer may have a depressive effect upon a defendant, but in light of the Illinois detainer in this case, we find that only minimal prejudice was due to the Tennessee indictment and detain-er.

The petitioner was forced to wait at least two years for his trial because of the State’s good faith but ineffective efforts to return him to Shelby County. There was no real justification for this delay and the defendant was probably prejudiced in some degree by it. Yet on balance we conclude that the petitioner was not denied his right to a speedy trial.

Affirmed.

      . The waiver of extradition form was presented directly to Trigg by prison officials and did not go through his counsel, the Public Defender of Shelby County. (There was some evidence that Trigg was unaware of the appointment of counsel and hence did not realize he had legal representation available to advise him.) The Tennessee Court of Criminal Appeals in its opinion dated May 5, 1970, indicated its view that any waiver request should have been made to Trigg’s counsel. The State contends that the petitioner’s refusal to sign the form indicated that he was not sincere in his assertion of his right to a speedy trial.

      . In Trigg v. Moseley, 433 F.2d 364 (10th Cir. 1970), the Court of Appeals affirmed the district court’s dismissal of the habeas corpus action filed by Trigg seeking the removal of the Tennessee detainer. As indicated above, Trigg had filed in state court a motion to dismiss claiming a denial of his right to a speedy trial. This motion was summarily rejected, but the decision was overturned and remanded by the Court of Criminal Appeals. Because Trigg’s claim was due a reconsideration by the state courts, the Tenth Circuit decided that he had not exhausted his state remedies pursuant to 28 U.S.C. § 2254. In response to a request by the State of Tennessee for the issuance of a writ of habeas corpus ad prosequendum, the court held that such a writ had to issue from the state and not the federal court.

      . In its first consideration of this case, the Tennessee Court of Criminal Appeals on May 5, 1970, reversed the summary dismissal of Trigg’s motion and remanded the case to the trial court. (It was this opinion to which the Tenth Circuit referred. See n. 2, supra.) Examining the facts in light of Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), the court concluded that up to the time of the dismissal (October 1969) the State had not made a diligent, good faith effort to return the petitioner for trial. It also criticized but did not condemn the State’s attempt to have Trigg sign a waiver of extradition without first consulting his counsel of record. On December 6, 1972, the Court of Criminal Appeals again rendered an opinion involving Trigg. This appeal was taken after Trigg was convicted of the armed robbery charge. He challenged the weight and sufficiency of the evidence and asserted that he had been denied his right to a speedy trial. In a lengthy reconsideration of the speedy trial issue, the court found no constitutional violation. As it assessed the factors, the court reasoned that the State had made a diligent, good faith effort to return Trigg; that the petitioner had not made a strong showing of prejudice; and that Trigg’s assertion of his right did not amount to an unequivocal demand.

      . The United States became a party to the Interstate Agreement on Detainers when Congress enacted the compact on December 9, 1970. 18 U.S.C. Appendix. The Act went into effect ninety (90) days later. This enactment specifically deals with the return of a federal prisoner to a state court to stand trial. The agreement has replaced the other methods available to a state for obtaining temporary custody of a defendant. Prior to the adoption of this Act, the primary method for acquiring custody of a federal prisoner was for a state court to issue a habeas corpus ad prosequendum. Huston v. Kansas, 390 F.2d 156 (10th Cir. 1968); see n. 2 supra. Once federal authorities received this writ, they generally honored it provided satisfactory arrangements were made for the payment of expenses. Smith, 393 U.S. at 381, 89 S.Ct. 575. Another possible procedure was to make a request to the United States Attorney General pursuant to 18 U.S.C. § 4085. That section provides for the return of a state prisoner at the expense of the federal government if the Attorney General “finds it in the public interest to do so.” This method has not been frequently agreed to by the United States. Id. at 381, 89 S.Ct. at 579. There is evidence in the record that the State of Tennessee did attempt to proceed under § 4085 but to no avail.

      . The record does not disclose whether Trigg ever waived extradition. In early June of 1971, the State sent its own agents to Leavenworth to pick up the petitioner, but because they failed to comply with a provision of the Detainer Act, they returned without him. The agents went back at the end of the month and finally obtained custody of Trigg.

      . Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).

      . The State argues that this admitted delay can be reduced still further by considering Trigg’s failure to cooperate and by the federal government’s “footdragging.” We are not convinced that the United States was less than diligent in assisting the State. As early as May 27, 1969, federal prison authorities informed the State of the necessary procedure for obtaining temporary custody of the petitioner.

      . There is no evidence in the record regarding the difference in the cost to the State between using United States Marshals or its own agents.

      . In its first letter to Leavenworth on February 11, 1969, the State asked that it be allowed to use its own agents because it would be less expensive. Three months later the State wrote that it would pay for the United State's Marshals provided Trigg would waive extradition. In its appearance in the federal habeas corpus action in Kansas, the State again sought permission from the district court to use its own agents but apparently did not require a waiver of extradition. A year later in a letter from the Tennessee Attorney General’s Office to the Shelby County District Attorney’s Office, an assistant attorney general stated that Tennessee would pay for the use of United States Marshals.

      . The State sought to strike Trigg’s motion to dismiss because of his failure to cooperate by refusing to waive extradition. In light of his alleged attempts to contest the detainer in 1968 and his several court actions to the same end, and considering the circumstances surrounding the waiver, we do not attach much significance to the claim of non-cooperation.

      . We are not unmindful of the recent decision in Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973) in which the Supreme Court said that an affirmative showing of prejudice was not required, at least with respect to any potential defense.

      . In Tennessee, armed robbery is punishable by life imprisonment or by confinement “for any period of time not less than ten (10) years.” Tennessee Code Annotated (T.C.A.) § 39-3901. Recent cases have held that the Indeterminate Sentence Law (T.C.A. §§ 40-2707 — 40-2710) does not apply to armed robbery, and thus the jury is empowered to fix a determinate sentence as punishment. See State ex rel. Quinn v. State, 2 Tenn.Cr.App. 82, 451 S.W.2d 701 (1969); State ex rel. Crumpler v. Henderson, 1 Tenn.Cr.App. 47, 428 S.W.2d 800 (1968). Furthermore, because the maximum sentence for this offense is greater than ten years in prison, the trial judge does not have the power to suspend an armed robbery sentence and place the defendant on probation. T.C.A. § 40-2901. The only discretion a trial judge can exercise after an armed robbery conviction is to decide whether the sentence should run concurrently or consecutively with any other prison term. T.C.A. § 40-2711; see United States v. Ruck-er, 150 U.S.App.D.C. 314, 464 F.2d 823, 826 (1972). But see United States v. Cabral, 475 F.2d 715, 719-720 (1st Cir. 1973).

      . According to the district court’s opinion, Trigg has already been released from Leavenworth after serving seven years and four months of his federal sentence; and the State of Illinois has dismissed its detainer against him. As a result, the district judge ordered Trigg turned over to Tennessee authorities to begin serving his ten year sentence.


author: JAMES M. CARTER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Wendall Allen CAMPBELL, Defendant-Appellant.
    No. 74-2362.
    United States Court of Appeals, Ninth Circuit.
    Dec. 5, 1974.

      J. David Franklin (argued), San Diego, Cal., for defendant-appellant.
    William Bower, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-ap-pellee.
    Before DUNIWAY and CARTER, Circuit Judges, and WEIGEL, District Judge.

      Honorable Stanley A. Weigel, United States District Judge, Northern District of California, sitting by designation.

   OPINION

JAMES M. CARTER, Circuit Judge.

Defendant Wendall Allen Campbell appeals from the judgment of conviction after a jury trial, of illegally importing and knowingly possessing with intent to distribute 151.2 grams of heroin, and illegally importing 1.2 grams of cocaine, in violation of 21 U.S.C. §§ 952 and 841(a)(1). The defendant’s contentions on appeal which merit discussion are:

I. Whether the evidence was sufficient to sustain the convictions.

II. Whether, under the circumstances of this case, the court was correct in instructing the jury that they may infer knowledge from defendant’s driving the contraband-laden vehicle.

III. Whether the trial court properly advised the jury of the manner in which the trial was to proceed after the granting of the co-defendants’ motions for judgment of acquittal. We affirm.

FACTS

On January 19, 1974, the defendant’s mother loaned him her 1973 Cadillac Eldorado. He told her that he wanted the vehicle to pick up his daughter who lived some 20 miles away. This was not true.

At approximately 2:20 p. m. on January 22, 1974, the defendant and his three co-defendants entered the United States at the San Ysidro port of entry in the same 1973 Cadillac. All four told the Customs Inspector that they had nothing to declare, and said that they had been in Mexico celebrating one of the passengers’ birthday.

Customs Inspector Villegas asked the defendant to open the trunk of his car. The trunk was opened from the inside, but as the defendant walked toward the trunk carrying his keys, Villegas noticed his hands shaking or trembling.

The defendant told Villegas that he worked for the Los Angeles County Probation Department. When asked for identification, the defendant produced a probation department card, but with someone else’s name on it. The defendant said that the card belonged to one of his associates. When pressed about his employment, however, he said that he no longer worked for the probation department and had not worked for them for about a year. He had been unemployed since then.

Inspector Villegas waved the car on, but immediately called for it to stop when he noticed one passenger’s hand trembling and another’s neck pulsating very rapidly. When he looked in the car, all of the passengers were looking in his direction, but their eyes were not making contact with his.

Once at the secondary inspection area, needle tracks were discovered on the arms of the two female passengers, and one of them said she “shoots coke.” The car was inspected and the narcotics-found under the dashboard above the radio.

At trial, one of the agents testified as to the street value of the narcotics. The value was shown to be about $30,000. At the trial, at the close of the prosecution’s case, the court granted (outside of the jury’s presence) motions for judgment of acquittal by the three co-defendants, and dismissed three conspiracy counts against the defendant. The trial continued as to the defendant, and he was convicted. This appeal ensued.

I.

The Evidence was Sufficient to Sustain the Conviction.

II.

The Court was Correct in Instructing the Jury That They Might Infer Knowledge from the Defendant’s Driving the Contraband-Laden Vehicle.

We consider contentions I and II together.

We do not reach the question as to whether the evidence was sufficient to support the conviction without the inference available from the court’s instructions.

The court instructed the jury as follows:

“You are instructed that if you find that the Defendant, WENDALL ALLEN CAMPBELL, was the driver of the 1973 Cadillac El Dorado automobile and if you find that the heroin and cocaine were inside the Cadillac automobile or concealed in its body, then you may infer from these two facts — well, all other facts in the case, that the Defendant, WENDALL ALLEN CAMPBELL, knew the heroin and cocaine were in the automobile, but you must find actual knowledge that the heroin and cocaine were in the vehicle at the time it was driven into the United States as that is an essential element of the offense charged. You may not find the Defendant guilty unless you find beyond a reasonable doubt that he knew either heroin or cocaine were in the automobile at the time that it was driven into the United States.”

It is unquestioned that such an instruction is proper where the defendant was the sole occupant of the car, see, e. g., United States v. Castillo-Burgos, 501 F.2d 217 (9 Cir. 1974), cert. den., - U.S. -, 95 S.Ct. 330, 42 L.Ed.2d 284 (1974). The propriety of the instruction where a number of occupants of the car could have placed the contraband therein is not as clear. However, in United States v. Fallang and Durgin, 439 F.2d 685 (9 Cir. 1971) and Eason v. United States, 281 F.2d 818 (9 Cir. 1960), convictions based on such an inference were upheld where either of two occupants could have concealed the contraband without the other’s knowledge. The courts found in each case that even if the defendant personally had not concealed the contraband, the joint nature of the venture supported an inference that the defendant had both knowledge of and control over contraband concealed by a companion.

In the present case, it is possible, as the defendant contends, that one of the other passengers concealed the drugs beneath the dashboard without his knowledge. However, the proximity of the drugs to the driver (the defendant), the friendship and joint nature of the venture, the testimony that the defendant, like the others, appeared to be nervous, and the defendant’s complete control of the car, at least warranted the giving of an instruction that the jury may infer the defendant’s knowledge of the contraband. The evidence was “sufficient to warrant a reasonable jury finding beyond reasonable doubt that possession was joint.” Eason, supra, at 821.

It is true, as the defendant contends, that the instruction did not “make it clear that the jury is not required to draw either inference, and that the permissible inferences do not shift the burden of proof nor require the possessing defendant to testify or come forward with evidence,” United States v. Bagby, 451 F.2d 920, 929 (9 Cir. 1971). And see the instruction approved in Castillo-Bur-gos, supra. However, the court made it quite clear that the jury must find knowledge that the contraband was concealed in the car beyond a reasonable doubt, and twice instructed the jury that mere presence at the scene and knowledge that a crime was being committed were not sufficient to establish guilt. Since it was necessary to find both a joint venture and knowledge, such a finding would also readily support a finding of joint possession.

III.

There was no Error in Advising the Jury of the Manner in Which the Trial was to Proceed After the Granting of the Codefendant’s Motion for Judgment of Acquittal

We cannot say that the court committed plain error. Everything the court did, including its explanation to the jury of what had happened, was entirely proper.

Defendant contends on appeal that the trial court should have given an instruction making it “perfectly clear” that no implication with respect to the defendant’s guilt was intended in granting the co-defendant’s motions for acquittal. No such instruction was requested by defense counsel. The failure to give the desired instruction cannot be considered plain error in light of the very fair and neutral statement actually made and the detailed and accurate instructions given by the trial court at the end of the trial. If the defendant was guilty, then probably all of the others were also guilty. But the court’s decision to acquit the others does not render a jury verdict against the defendant any the less valid, where a properly instructed jury found him guilty beyond a reasonable doubt.

Defendant’s other contentions are without merit. We note his contention that Inspector Villegas intentionally misstated the facts, thereby denying him due process. From a reading of all of the relevant testimony, the argument in the defendant’s brief is grossly overstated. The minor inconsistencies in Ville-gas’ testimony are quite understandable and were for the jury to weigh. Obviously, the jury did not find them to be significant.

Judgment affirmed.

      . Counsel for the defendant objected to the instruction but did not suggest any modifying language to the effect that the jury was not required to draw the inference. Had such suggestion been made it would have been proper to add the cautionary language. See United States v. Bagby, 451 F.2d 920, 929 (9 Cir. 1971). But objection alone is not sufficient. If counsel is dissatisfied with an instruction he must point out specifically what he contends is lacking,

      . After the jury was seated, the court made the following statement to the jury:
      “As I told you at the outset there were matters that had to be taken up out of the presence of the jury and as a result, there are certain matters that have been concluded with respect to Defendants Moore, New-some and McReynolds and therefore, the only defendant here on trial now is the Defendant Campbell. Also, with regard to the counts in the indictment, which I will be alluding to in my instructions, Counts 1, 3 and 5, three conspiracy counts, are no longer available for your consideration. “The only counts you will be considering will be Counts 2, 4 and 6, the importation counts, the possession with intent to distribute counts as to the heroin and possession with intent to distribute counts as to the cocaine.”


author: GIBSON, Chief Judge.

text:
    CARLSON COMPANIES, INC., et al., Appellants, v. the SPERRY AND HUTCHINSON CO., Appellee.
    No. 74-1540.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 18, 1974.
    Decided Dec. 19, 1974.
    See also, D.C., 374 F.Supp. 1080.
    John Bodner, Jr., Washington, D. C., for appellants.
    William E. Kelly, New York City, for appellee.

      Before GIBSON, Chief Judge, and LAY, and STEPHENSON, Circuit Judges.
   GIBSON, Chief Judge.

Plaintiff, Carlson Companies, Inc., appeals a grant of summary judgment in favor of defendant, The Sperry and Hutchinson Co., on Count IV of plaintiff’s complaint seeking damages and equitable relief for alleged violations of § 7 of the Clayton Act. The District Court determined as a matter of law that no private action for damages was available under § 7 in reliance upon a footnote contained in Highland Supply Co. v. Reynolds Metal Co., 327 F.2d 725, 728 n. 3 (8th Cir. 1964). Other claims remained in the case after summary judgment on Count IV. However, the District Court determined there was no just reason for delay and pursuant to Rule 54(b), Fed.R.Civ.P., directed entry of final judgment on Count IV. Carlson brings this timely appeal.

We are concerned on this appeal only with the legal question as to the availability of a private right of action under §§ 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26, for alleged Clayton Act § 7 violations. Defendant in its brief has avoided a discussion of this precise issue and has attempted to justify the grant of summary judgment for defendant upon factual grounds not relied upon by the District Court. Obviously the factual grounds are in dispute between the parties, and we decline the invitation to address the factual issues on this record.

We hold that a private cause of action under § 4 and § 16 is available for violations of § 7 of the Clayton Act. This conclusion is necessitated by the clear wording of § 4 which reads:

Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the Uhited States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.

Furthermore, it must be noted that Count IV of plaintiff’s complaint seeks injunctive relief as well as damages. Section 16 of the Clayton Act explicitly authorizes suits for injunctive relief at the instance of private parties. Zenith Corp. v. Hazeltine, 395 U.S. 100, 130—131, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969).

There can be little doubt but that § 7 is an “antitrust law” as that term is used in § 4 and § 16. 15 U.S.C. §§ 15 and 26; Gottesman v. General Motors Corp., 414 F.2d 956 (2d Cir. 1969); Dailey v. Quality School Plan, Inc., 380 F.2d 484 (5th Cir. 1967); New Jersey Wood Finishing Co. v. Minnesota Mining & Manufacturing Co., 332 F.2d 346 (3d Cir.), aff’d 381 U.S. 311, 85 S.Ct. 1473, 14 L.Ed.2d 405 (1964).

The great weight of authority supports allowance of a private action for a § 7 violation. Gottesman v. General Motors Corp., supra; Dailey v. Quality School Plan, Inc., supra; New Jersey Wood Finishing Co. v. Minnesota Mining & Manufacturing Co., supra; Beegle v. Thomson, 138 F.2d 875, 880-881 (7th Cir. 1943).

It is important to note just what this court said in Highland Supply. In note three the court said that § 7 of the Clayton Act could not be considered a per se violation of the antitrust laws so as to give rise to a private cause of action. Thus the mere possibility of harmful effects would not support a damage action under § 4. The court stated that “no private right of action accrues from such a violation,” Highland Supply, supra 327 F.2d at 728 n. 3, i. e., from the potential anti-competitive effects of an acquisition. The court’s statement, read in the limited context of the facts in Highland Supply, is not a holding that no violation of § 7 will support a private cause of action. The primary issue in Highland Supply was the applicability of the statute of limitations to a vertical integration, and this court’s remarks in note three were dicta at best and not controlling in the factual context of the instant case. Whether such an action is supportable is a problem of proof of a specific injury suffered by the plaintiff. See Blaski v. Inland Steel Co., 271 F.2d 853, 855 (7th Cir. 1959), wherein the court stated, quoting Beegle v. Thomson, supra 138 F.2d at 881:

The mere existence of a violation is not sufficient ipso facto to support the action, for no party may properly seek to secure something from another without allegation and proof of facts demonstrating pecuniary loss springing from or consequent upon the unlawful act.

An acquisition, the effect of which may be substantially to lessen competition, is a violation of § 7, but to support a private action a plaintiff must show more than the possibility of harm; he must demonstrate some private harm to himself. Bender v. Hearst Corp., 263 F.2d 360, 370 (2d Cir. 1959).

We are concerned by the apparent anomaly in allowing a private right of action for damages under § 7 which is basically an incipiency statute. In its consideration of amended § 7 in Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S.Ct. 1503, 1521, 8 L.Ed.2d 510 (1962), the Supreme Court noted in regard to § 7 that:

Taken as a whole, the legislative history illuminates congressional concern with the protection of competition, not competitors, and its desire to restrain mergers only to the extent that such combinations may tend to lessen competition. (emphasis in original).

It is difficult to visualize circumstances where actual damages are suffered from a probable or threatened lessening of competition, the criteria for a § 7 violation, though, of course, it is readily apparent that damage can easily result from completed illegal acquisitions once the monopoly takes hold. As the Second Circuit reasoned in Gottesman v. General Motors Corp., 414 F.2d 956, 961 (2d Cir. 1969):

[I]f the threat ripens into reality we do not see why there can never be a private cause of action for damages. If section 7 is designed to prevent acquisitions that “may” or “tend to” cause specified harm, such an acquisition may either itself directly bring about the harm or make possible acts that do.

Thus, it can readily be accepted that any acquisition is likely to create some injury. But it is only anti-competitive injury which § 7 was intended to eliminate, more precisely only the probability of an anti-competitive injury. Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, already provide a remedy for situations of anti-competitive injury incurred as a result of an actual lessening of competition.

Plaintiff candidly admits that reliance upon § 7 is made because of the lower standard of proof required to establish a violation. However, while we are concerned with what we view as a misapplication of the statute’s primary remedial purpose away from injunctive relief to halt or correct violations in their incipiency toward its use to support private treble damage actions, we can reach no other conclusion but that § 7 is an antitrust law as that term is used in § 4 of the Clayton Act.

While the primary thrust of § 7 is to prohibit and thus to forestall anti-competitive and monopolistic acquisitions, there appears to be no rational basis for holding that a completed acquisition violative of § 7 that leads to specific damages cannot be a basis for an action under § 4 of the Clayton Act. As a practical matter it often may be difficult to foresee and evaluate the real impact and effect of an acquisition until the transaction has been completed and the aggregate combine is operating. Although this may provide a double basis for liability in a factual situation that also is violative of § 1 and § 2 of the Sherman Act, the action is not precluded by statutory exception, statutory language, nor the legislative history of the Clayton Act. Of course, only one treble damage recovery is allowable under a given factual situation that would constitute a violation of both § 7 of the Clayton Act and §§ 1 and 2 of the Sherman Act.

We therefore think that the proscription of § 4 applies to acquisitions that violate § 7 on completion. Recovery for a violation as alleged in plaintiff’s complaint must rest on proof of actual damage, which issue is not before us. We therefore reverse the decision of the District Court granting summary' judgment for defendant and remand the case with instructions to reinstate Count IV of plaintiff’s complaint.

      . Section 7 of the Clayton Act, 15 U.S.C. § 18, in pertinent part reads:
      No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.

      . That note reads:
      We think that any effort to convert Section 7 of the Clayton Act into a per se violation of the anti-trust laws so as to give rise to a private right of action under the Clayton Act has been squarely checked by what is said by Mr. Chief Justice Warren in Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510. As interpreted in that case, Section 7 of the Clayton Act does not condemn all mergers, but only those having demonstrable anti-competitive effects. The statute deals with clear-cut menaces to competition, not with accomplished monopolies, presently creating damages to a competitor, which is the sine qua non of a private right of action under Section 5 of the Clayton Act.
      Section 7 of the Clayton Act was intended to supplement the Sherman Act and:
      “primarily to arrest apprehended consequences of intercorporate relationships before those relationships could work their evil, which may be at or any time after the acquisition, depending upon the circumstances of the particular case.”
      United States v. duPont & Co., 353 U.S. 586, at 597, 77 S.Ct. 872, 1 L.Ed.2d 1057. * * * That no private right of action accrues from such a violation, see: Independent Iron Works, Inc. v. United States Steel Corp., 322 F.2d 656 (9 Cir. 1963); United States v. Continental Can Co., D.C., 217 F.Supp. 761, 767 (1963); United States v. Ingersoll-Rand Co., et al., 218 F.Supp. 530 (W.D.Penna. 1963), aff’d 320 F.2d 509 (3 Cir. 1963); Gottesman v. General Motors Corp., 221 F.Supp. 488 (S.D.N.Y.1963).

      . Section 16, 15 U.S.C. § 26, reads in pertinent part:
      Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws * * *.

      . See Calnetics Corp. v. Volkswagen of America, 348 F.Supp. 606, 616 (C.D.Cal.1972); Bay Guardian Co. v. Chronicle Publishing Co., 340 F.Supp. 76, 81 (N.D.Cal.1972); Isidor Weinstein Inv. Co. v. Hearst Corp., 310 F.Supp. 390, 391 (N.D.Cal. 1970); Metric Hosiery Co. v. Spartans Indus. Inc., 50 F.R.D. 50, 52 (S.D.N.Y.1970); Kirihara v. Bendix Corp., 306 F.Supp. 72, 80-88 (D.Haw.1969); Metropolitan Liquor Co. v. Heublein, Inc., 305 F.Supp. 946, 948 (E.D.Wis.1969); Western Geophysical Co. v. Bolt Associates, Inc., 305 F.Supp. 1251, 1254 (D.Conn.1969); Sam S. Goldstein Indus., Inc. v. Botany Indus., Inc., 301 F.Supp. 728, 734-735 (S.D.N.Y.1969); Julius M. Ames Co. v. Bostitch, Inc., 240 F.Supp. 521, 525-526 (S.D.N.Y. 1965); Rayco Mfg. Co. v. Dunn, 234 F.Supp. 593, 597 (N.D.Ill.1964); cf. Blaski v. Inland Steel Co., 271 F.2d 853, 855 (7th Cir. 1959); Bender v. Hearst Corp., 263 F.2d 360, 370 (2d Cir. 1959). Contra, Isidor Weinstein Inv. Co. v. Hearst Corp., 303 F.Supp. 646 (N.D.Cal.1969), rev’d, 310 F.Supp. 390 (N.D.Cal.1970); Highland Supply Co. v. Reynolds Metal Co., 245 F.Supp. 510 (E.D.Mo. 1965); Bailey’s Bakery, Ltd. v. Continental Baking Co., 235 F.Supp. 705 (D.Haw.1964), overruled in Kirihara v. Bendix Corp., supra.

      . See discussion in Kirihara v. Bendix Corp., 306 F.Supp. 72, 85-86 (D.Haw.1969).

      . See F.T.C. v. Procter & Gamble Co., 386 U.S. 568, 577, 87 S.Ct. 1224, 18 L.Ed.2d 303 (1967).