author: J. JOSEPH SMITH, Circuit Judge: GURFEIN, Circuit Judge

text:
    UNITED STATES of America, Plaintiff, v. GENERAL DOUGLAS MacARTHUR SENIOR VILLAGE, INC., et al., Defendants-Appellees, D.C.R. Holding Corp., et al., Defendants-Appellants.
    Nos. 23 to 25, Dockets 74-1065, 74-1066, and 74-1314.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 9, 1974.
    Decided Nov. 11, 1974.

      Stanley Beals, Jericho, N. Y., for defendant-appellant Schwartz.
    John M. Farrell, Jr., Great Neck, N. Y. (Schiffmacher, Cullen, Rochford & Farrell, Great Neck, N. Y.), for defendant-appellant D. C. R. Holding Corp.
    William S. Norden, Deputy County Atty. (Joseph Jaspan, County Atty. of Nassau County, Natale C. Tedone, Sr. Deputy County Atty., Mineóla, N. Y., of counsel), for defendant-appellee County of Nassau.
    Matthew Feinberg, Hempstead (Saul Horowitz, Corp. Counsel, Village of Hempstead, Hempstead, N. Y., of counsel), for defendant-appellee Village of Hempstead.

      Michael P. Gurlides, Mineóla, N. Y„ on the brief for defendant-appellant Estate of David Rand.
    John F. O’Shaughnessy, Town Atty. of the Town of Hempstead (Daniel P. McCarthy, Asst. Town Atty., of counsel), on the brief for defendant-appellee Town of Hempstead.
    Before SMITH, TIMBERS and GURFEIN, Circuit Judges.

       At the time of oral argument, Judge Gurfein was a United States District Judge for the Southern District of Xew York, sitting by designation.

   J. JOSEPH SMITH, Circuit Judge:

This appeal involves cross-claims raised in an action reported as United States v. General Douglas MacArthur Senior Village, Inc., 337 F.Supp. 955 (E.D.N.Y.), rev’d, 470 F.2d 675 (2d Cir. 1972), cert. denied sub nom. County of Nassau et al. v. United States, 412 U.S. 922, 93 S.Ct. 2732, 37 L.Ed.2d 149 (1973). In the principal action, the United States, as the holder of a mortgage superior in interest to the tax liens purchased on the same property by the appellants, was permitted to foreclose upon that property of General Douglas MacArthur Senior Village, Inc.; there had been a breach of the mortgage agreement. The cross-claims presently under review constitute attempts by the defendant tax lienors, D. C. R. Holding Corporation and four individual parties, to secure a refund of their purchase price for the liens from Nassau County, the Village of Hempstead and Town of Hempstead. Since the amount due on the government’s mortgage exceeded the proceeds of the foreclosure sale, the liens are now totally worthless. Judge Jack B. Weinstein of the Eastern District of New York dismissed the cross-claims on a motion for summary judgment. 366 F.Supp. 302 (1973). By reason of jurisdiction of the principal claim, jurisdiction over these ancillary claims obtains without independent jurisdictional basis. See, R. M. Smythe & Co. v. Chase National Bank of City of New York, 291 F.2d 721, 724 (2d Cir. 1961); United States v. Championship Sports, Inc., 284 F.Supp. 501, 509 (S.D.N.Y.1968); United States v. Manufacturers Hanover Trust Co., 231 F.Supp. 160, 162 (S.D.N.Y.1964); 3 J. W. Moore, Federal Practice jf 13.36, at 13-925 (2d ed. 1974). After consideration of the New York law governing these state law claims, Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we conclude that these cross-claims are without merit and affirm the judgment.

The appellants’ several briefs basically expound three alternative grounds for reversal. One, predicated on the tax-exempt character of the MacArthur property, fails by reason of collateral estoppel, for we held in resolving the principal claim that the property was in fact taxable. United States v. General Douglas MacArthur Senior Village, Inc., supra, 470 F.2d 675 at 680. The appellants’ two other objections will require more detailed discussion; they are: under the New York Real Property Tax Law (RPTL), McKinney’s Consol.Laws, c. 50-a, a subdivision of the state selling a tax lien necessarily warrants the lien’s priority; and under the common law of contractual obligation, the sale of worthless tax liens gives rise to an action for rescission.

I. WARRANTY OF PRIORITY

RPTL § 1464(6) incorporates a warranty of lien validity into every sale of a tax lien by municipalities. A tax lien may be valid, however, yet prove to be worthless because a superior lien on the property leaves no residue to which the inferior lien may attach. To protect against this latter possibility — one realized in the case under review — it would be necessary for a tax lien purchaser to require of the seller a warranty of priority. The risk of loss for sale of a lien rendered less valuable, or valueless, by a prior interest would then remain with the seller; the purchaser would be entitled to rescission.

Foreclosed by our prior decision in this ease from impugning the lien’s validity, swpra, and not the beneficiaries of an express warranty’ of priority, the appellants thus seek to establish that a statutorily implied warranty of priority accompanied their transactions. Specifically, they rely on RPTL §§ 1464(3), (5), for the proposition that a municipality selling a tax lien implicitly warrants that it can transfer title and possession, subject only to claims of the village, county or state. These provisions are set out in the margin. The encumbrance at issue which rendered the tax liens valueless belonged to the federal government. As such, it was admittedly outside the express exceptions to the conveyance of a fee simple absolute required by these provisions.

Three considerations, however, counsel against the application in this instance of expressio unius, exclusio alterius, for which the appellants in effect contend. ' First, the certificate of sale received by each appellant made the lien purchased subject to superior tax liens of “Sov-ereignties” and other municipalities. This express contractual reservation does not decide the issue against the appellants because their interest was superseded by a mortgage, rather than tax lien, held by a sovereignty. On the otheh hand, this recognition of sovereign claims does infer that an implied exception in RPTL § 1464(3) for federal liens — clearly, liens of a “sovereignty” —would comport with custom and usage and the basic business understanding.

Secondly, one cannot ignore the broader context within which the statute must operate: a federal system in which supremacy resides with the center. U.S. Const, art. VI. Since the state plainly lacks the power to subordinate a federal interest superior under federal law, New Brunswick v. United States, 276 U.S. 547, 48 S.Ct. 371, 72 L.Ed. 693 (1928) ; cf. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), the legislature undoubtedly assumed that an exception in subsection (3) for the United States was understood. The inference, then, that the United States is implicitly included among the superior interest-holders listed in § 1464(3) follows. We would hesitate to find it excluded on less than express terms. Cf. In re Gruner, 295 N.Y. 510, 524, 68 N.E.2d 514 (1946) ; Riverhead Estates Civic Ass’n v. Gobron, 134 N.Y.S.2d 13, 16, 206 Misc. 405 (Suffolk County Ct.1954).

Finally, in RPTL § 1464(6), supra, fn. 1, the New York legislature specified various conditions (errors or irregularities in assessment, levy or collection proceedings) justifying a refund. Recognition of these circumstances of lien invalidity as a basis for rescission may seem no more than equity would require. In fact, however, this provision represents a notable advance from the governing law of caveat emptor. See the opinion below, 366 F.Supp. 302 at 305-306. If the New York legislature intended to make the even greater departure from the common law of creating a warranty of priority, we must assume that they would have done so with no less clarity.

In sum, contrary to the appellants’ assertion, RPTL §§ 1464(3), (5), require a municipality to warrant that the real property conveyed in consideration of the purchase of the tax lien represents all within the state’s power to convey. Since the appellees were powerless to overcome the federal government’s mortgage, their failure to convey anything of value to the appellants was not a breach of the duty imposed by § 1464. The statute offers no basis for rescission of the contested purchases.

II. CONTRACTUAL FRUSTRATION AND IMPOSSIBILITY

The common law of contract excuses a party from performing his contractual obligations because of “impossibility of performance” or “frustration of purpose.” See generally, 6 A. Corbin, Contracts § 1322 (1962). In general, impossibility may be equated with an inability to perform as promised due to intervening events, such as an act of state or destruction of the subject matter of the contract. The doctrine comes into play where (1) the contract does not expressly allocate the risk of the event’s occurrence to either party, and (2) to discharge the contractual duties (and, hence, obligation to pay damages for breach) of the party rendered incapable of performing would comport with the customary risk allocation. Essentially, then, discharge by reason of impossibility — as well as the concomitant remedy (to the discharge) of rescission —enforces what can reasonably be inferred to be the intent of the parties at the time of contract.

Frustration of purpose, on the other hand, focuses on events which materially affect the consideration received by one party for his performance. Both parties can perform but, as a result of unforeseeable events, performance by party X would no longer give party Y what induced him to make the bargain in the first place. Thus frustrated, Y may rescind the contract. Discharge under this doctrine has been limited to instances where a virtually cataclysmic, wholly unforeseeable event renders the contract valueless to one party. See, Alfred Marks Realty Co. v. Hotel Hermitage Co., 170 App.Div. 484, 156 N.Y.S. 179 (2d Dept. 1915); Krell v. Henry [1903] 2 K.B. 740 (C.A.); 6 A. Corbin, Contracts, supra, at § 1355.

Against the backdrop of this basic doctrinal distinction between impossibility and frustration, the lack of foundation for the appellants’ invocation of common law becomes apparent. Their argument may be summarized as follows : the municipalities’ inability to convey title and possession to the MacArthur property due to a foreclosure proceeding by a superior lienor was an event not contemplated by either the seller or purchaser of the tax lien; and this unforeseeable event left the municipalities without the means to perform their part of the contract, thereby discharging the purchasers’ duty to perform (i. e., make payment) and providing the basis for rescission.

The corporate appellant places this argument under a frustration of purpose rubric, while the appellant Schwartz denominates it impossibility of performance. Their disagreement is illuminating in that the argument itself fails under either heading because it is such a confused mix of both.

A party invokes impossibility to excuse its own inability to perform. But obviously the appellants can perform because they already have. On the other hand, impossibility may apply to their situation insofar as impossibility may be felt to have discharged the municipalities from performing and thereby created a situation where the appellants would benefit from the rescission secured by the sellers. Cf. 6 A. Corbin, Contracts, supra, at § 1353. This tack implies, though, that the municipalities’ failure to deliver title and possession to the MaeArthur property was evidence of non-performance and invitation to mutual rescission; and this thesis of course assumes the very point which the appellants need to prove — that the appellees’ duty included delivery of title and possession.

Insofar as a frustration theory inheres in the appellants’ argument, it too partakes of a certain circularity. Thus, to argue that the foreclosure by the superior lienor triggers the frustration doctrine is implicitly to characterize that event as cataclysmic. In fact, however, the risk of this event occurring is one which caveat emptor had long since placed with the purchaser. Broadly speaking, the thrust of the common law of tax lien sales, a law notably severe to purchasers, was to place any events depriving the transaction of value within the reasonable contemplation of the parties.

Whether the appellants’ contractual defense is cast in terms of impossibility or frustration, it proves inadequate. Their argument essentially relies upon the existence of a warranty of priority. Accordingly, the appellants’ failure to establish such a warranty, see I, supra, precludes their success on this ground.

The appellants may be correct, however, in maintaining that sound economics counsels recognition of a warranty of priority. Perhaps lack of this warranty does impose an unfair and unmanageable burden on the purchaser: To protect himself from loss, he must make a title search of any property before purchasing a tax lien on it. (Here a search would have disclosed the government mortgage.) And perhaps a municipality’s failure to warrant priority may in the long run be less profitable for it than warranting priority, for the burden and expense of making these title searches — or the risk that attends a purchase made without a prior search— may keep would-be purchasers out of the tax lien market. Nevertheless, this court is not the forum to which these considerations are properly addressed. The New York state legislature has not seen fit to date to override by statute the common law rule that the seller of a tax lien does not warrant its priority. It has carved out other exceptions in the tax lien area to the common law of caveat emptor. It is not for this court to decide, however, that having gone thus far, the legislature must go still further. Similarly any waiver of federal mortgage priority in tax lien cases is for the Congress, not this court.

The appellees did not warrant the priority of the tax liens which they sold to the appellants, nor did the appellees’ failure to convey title and possession to the MaeArthur property free from the lien of the government mortgage discharge the appellants’ duty to pay the purchase price for the liens under an impossibility of performance or frustration of purpose theory. The district court properly granted the appellees’ motion for summary judgment.

Affirmed.

GURFEIN, Circuit Judge

(dissenting) :

This seems to me to be a case where an honest shopkeeper would have given the customer his money back. While public officials may not dispense such largesse, the intriguing question is whether courts may not compel them to do so in the interest of fairness.

I respectfully dissent from the opinion of my colleagues to the contrary. While I agree with a good deal of what Judge Smith has written about impossibility and frustration, I approach the case from the view that there has been a failure of consideration based on a mutual mistake of law which justifies rescission.

A local property tax lien arises from a failure to pay taxes. The failure is also a breach of a covenant in the mortgage. Everyone knows as a matter of law that such tax lien comes ahead of the mortgage, R.P.A. & P.L. § 1354(2), McKinney’s Consol.Laws, c. 81, subject to a right of redemption in the mortgagor. R.P.T.L. § 1010. When the county or village sells a tax lien it says that this is a tax we ourselves could have collected ahead of the mortgage, subject only to a right of redemption, if we had not sold the lien to you. In this case, however, the county or village itself could not have collected the tax ahead of the mortgage. It was not selling a tax lien with characteristics legitimately and reasonably expected of a local property tax lien.

The reason the county or village was not selling a tax lien with these known characteristics is that the mortgage on the particular property, MacArthur Village, was held by the United States. On the earlier appeal, this Court held that the lien of the United States on MacArthur Village could not be defeated by tax liens of local governmental units. United States v. General Douglas MacArthur Senior Village, Inc., 470 F.2d 675 (2 Cir. 1972), cert. denied sub nom., County of Nassau et al. v. United States, 412 U.S. 922, 93 S.Ct. 2732, 37 L.Ed,2d 149 (1973). The lien of the United States owned mortgage would not have been defeated by the local tax lien even if it had remained in the hands of the County of Nassau or the village, as the case may be.

This case does not involve priorities as such.. There is a difference in kind between an ordinary type of federal tax lien such as one arising out of an income tax assessment or judgment and a federal mortgage lien. The former has no relation to the property but becomes a lien upon it to enforce a separate right of the federal government. The latter relates to the property itself. For that reason, in the earlier case involving MacArthur Village, this Court was not content to rely on the familiar rule applicable to priorities between ordinary federal tax liens and local property tax liens — the rule of United States v. New Britain, 347 U.S. 81, 74 S.Ct. 367, 98 L.Ed. 520 (1954), “first in time is first in right.” Under that rule the appeal could have been decided by simply applying it to sanction the priority of the federal mortgage on MacArthur Village which was concededly “first in time.” 470 F.2d at 677 This Court went further, however, to hold that under S. R. A. Inc. v. Minnesota, 327 U.S. 558, 66 S.Ct. 749, 90 L.Ed. 851 (1946), and New Brunswick v. United States, 276 U.S. 547, 48 S.Ct. 371, 72 L.Ed. 693 (1928), “local governments cannot take any action to collect unpaid taxes assessed against property which would have the effect of reducing or destroying the value of a federally held purchase-money mortgage lien.” 470 F.2d 679, 680.

Judge Kaufman (now Chief Judge) noted:

“In short, the land is not immune from local taxation, but .the federal interest is, and the local governments cannot enforce their liens until the federal debt is satisfied.” Id.

The unenforceability is not what we normally describe in terms of relative priority. It is rather an infirmity'imposed by implication from the federal constitution in the absence of Congressional consent. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). The tax lien imposed upon property on which the federal government holds a mortgage is not a true tax lien but is, at best, a hybrid. In New Brunswick v. United States, supra, 276 U.S. at 556, 48 S.Ct. 371, 373, 72 L.Ed. 693, the Court concluded that where the United States had a lien equivalent to a mortgage, the City could impose taxes on the equitable owner provided that the rights of the United States “are expressly excluded from such sales [tax sales] and they are made, by express terms, subject to all such prior rights, liens, and interests” (emphasis added). No statute of New York could constitutionally make the federal mortgage subject to the enforcement of the local tax lien. The constitutional validity of the imposition of the local property tax is conditioned upon an implied agreement of the locality to exclude such tax liens from tax sales and also to state “by express terms” that such liens are subject to the prior rights of the United States. The County of Nassau and the Village took advantage of this limited right to tax property subject to a federal mortgage lien but failed to live up to the second part of the constitutional dispensation — to exclude the tax lien arising from the tax lien sale.

If that is so, it seems to me that the county was not in a position to sell something that is commonly regarded as a proper 'tax lien. It owned no such lien on these premises, for while it could tax in a measure that included the federal mortgage interest, S. R. A. Inc. v. Minnesota, supra, it simply could not enforce the tax against the federal mortgage interest. Yet a buyer without notice would, I think, be justified in believing that a failure to announce that this was not an ordinary tax lien meant that it was precisely that.

This justified belief is strengthened by the circumstance that notice was given that the lien was subject to superior tax liens of such sovereignties but nothing was said of such mortgage liens. The majority acknowledges that “[t]his express contractual reservation does not decide the issue against the appellants because their interest was superseded by a mortgage, rather than tax lien, held by a sovereignty.”

I venture to say that the logical extension of this is that since warning was given it should have been given correctly. The majority glean from this limited notice the inference that an implied exception in R.P.T.L. § 1464(3) “for [all] federal liens . . . would comport with custom and usage and the basic business understanding.”

If this case is one of first impression, I do not see how we can find either “custom and usage” or a “basic business understanding” that there was one particularNtype of mortgage to which the tax lien would not be superior. So unclear was “custom and usage” that the scholarly District Judge decided, on that very question, that the lien of United States was not superior to the localHax lien. United States v. General Douglas MacArthur Senior Village, Inc., 337 F.Supp. 955 (E.D.N.Y.1972), and for this appeal to come to us now, that decision had to be reversed by this Court. 470 F.2d 675 (2 Cir.) (MacArthur I).

A failure to deliver a tax lien enforcible by the seller itself is thus joined to a mutual mistake of law. Neither the seller nor the buyers knew that the tax lien did not possess the normal legal characteristics of a tax lien. The seller was unjustly enriched when it was paid for a lien it could not itself enforce against the federal mortgage interest. See Rosenblum v. Manufacturers Trust Co., 270 N.Y. 79, 85, 200 N.E. 587 (1936).

While a benevolent casuistry may have been necessary in earlier days to convert a mistake of law into a mistake of fact in order to justify rescission, 3 Corbin, Contracts § 620; 13 Williston, Contracts § 1589, the New York Legislature has taken the forward step long urged by scholars. C.P.L.R. § 3005 provides:

“When relief against mistake is sought in an action or by way of defense or counterclaim, relief shall not be denied merely because the mistake is one of law rather than of fact.”

When the mistake of law is a part of the fundamental basis of the transaction, rescission is permitted because there is present the further element of failure of consideration. Williston, supra, § 1584. For an application of the modern view, see Ryan v. Vickers, 158 Colo. 274, 406 P.2d 794 (1965), cert. denied, 383 U.S. 944, 86 S.Ct. 1201, 16 L.Ed.2d 208 (1966).

Thus, if we apply New York law under Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we find no decisional law on rescission involving a federal mortgage. Nor, since we are not dealing with priorities, is any statute specifically in point.

The suggestion of the majority that since the Legislature has listed specific equitable exceptions to the doctrine of caveat emptor, R.P.T.L. § 1464(6), no others may be held to exist assumes an exclusivity in derogation of the general equitable powers of courts. While I recognize that generally a court should not add to a statute, see Iselin v. United States, 270 U.S. 245, 250-251, 46 S.Ct. 248, 70 L.Ed. 566 (1926) (Brandéis, J.), it is not a valid generalization that the statute must be taken to defeat any judicial remedy which exists independent of the statute.

In short, I do not think the loose generalization, originally made when caveat emptor still reigned, that one buys a tax lien at his peril applies to this situation which involves an unusual interplay of federal and state power arising from our dual system of government.

Incidentally, a refund to the purchasers here, as Judge Weinstein perceptively recognized, would help the local units of government to sell their tax liens, because it would eliminate a trap for the unwary which the wary might seek to escape by abstaining entirely from attendance at tax sales.

I would reverse the summary judgment on behalf of the appellees and grant it on behalf of appellants.

      . Xew York Real Property Tax Law § 1464: 6. In the event that any grantee under such conveyance is unable to obtain possession of the real property conveyed to him by reason of any error or irregularity in the assessment thereof, in the levying of a tax, or in any proceedings for the collection of any tax, the board of trustees shall refund to the purchaser the money so paid with interest, the same to be audited and paid as other village charges.

      . New York Real Property Tax Law § 1464:
      3. If tlie real property described in such notice is not redeemed within the time limited, the village treasurer shall, upon written application and the surrender of the certificate of sale together with proof of service by mail of the notice to redeem, or upon application by the board of trustees of the village with such proof of service, execute and deliver to the purchaser or village a conveyance of the real property so sold, the description of which shall include a specific statement of whose title or interest is thereby conveyed, as appears on the record, which conveyance shall vest in the grantee an absolute estate in fee, subject, however, to all claims the village, county or state may have thereon for taxes, liens or encumbrances.
      5. The grantee or his assigns, or the village and its assigns, as the case may be, shall be entitled to have and possess the real property conveyed from and after the execution of such conveyance and may cause any occupants thereof to be removed in the same manner and by the same proceedings as in the case of a tenant holding over without permission of his landlord.

      . Appellant Schwartz appears to urge RPTL § 1464(6) as an independent basis for refund. In this regard, we reiterate that this subsection literally addresses only problems of lien validity, not lien priority. Furthermore, for the historical reasons outlined immediately above, we reject any invitation to imply this additional basis for refund into § 1464(6) as a matter of consistency with general equitable principles.

      . This Court specifically rejected the contention that in enacting the statute under which HUD made the loan to MacArthur Village, 12 U.S.C. § 1701q, Congress waived the immunity mandated by New Brunswick v. United States, 276 U.S. 547, 48 S.Ct. 371, 72 L.Ed. 693 (1928), discussed infra. 470 F.2d at 680; see 12 U.S.C. § 1733.

      . The Court held that the 1966 Tax Lien Act, 26 U.S.C. § 6323(b)(6)(A), giving certain priorities to local property tax liens over federal tax liens did not apply in the case of federal mortgage liens.

      . Thus, New York could not provide by statute (C.P.A. § 1087) that local property tax liens achieve priority over federal liens- by being deemed “expenses of the sale” in foreclosure by the mortgagee. United States v. Buffalo Savings Bank, 371 U.S. 228, 83 S.Ct. 314, 9 L.Ed.2d 283 (1963), reversing Buffalo Savings Bank v. Victory, 11 N.Y.2d 31 (1962). And see United States v. Equitable Life Assurance Society, 384 U.S. 323, 86 S.Ct. 1061, 16 L.Ed.2d 093 (1966).

      . The New York Legislature may have recognized this in a limited way when it provided that parcels listed in a notice of tax sale “mortgaged to the commissioners of the land office for loaning certain moneys of the United States” shall be withdrawn from sale or bid in by the State Comptroller. R.P.T.L. § 1004.

      . - .Yno Brunneirl;. xupra, was apparently not cited to the District Court. There is no reference to it in its opinion.

      . R.P.T.L. § 1464(3) reads:
      “If the real property described in such notice is not redeemed within the time limited, the village treasurer shall, upon written application and the surrender of the certificate of sale together with proof of service by mail of the notice to redeem, or upon application by the board of trustees of the village with such proof of service, execute and deliver to the purchaser or village a conveyance of the real property so sold, the description of which shall include a specific statement of whose title or interest is thereby conveyed, as appears on the record, which conveyance shall vest in the grantee an absolute estate in fee, subject, however, to all claims the village, county or state may have thereon for taxes, liens or encumbrances.”

      . R.P.T.L. § 1006 provides that the certificate which the purchaser receives on a tax sale shall “contain a statement to the effect that if lands described thereon are not redeemed, the purchaser may complete the purchase and take a conveyance of the lands as provided in title one of article ten of this chapter, or, at his option, foreclose his lien pursuant to title two of article eleven thereof.”
      Here, although there was no redemption, a deed was not forthcoming as promised.

      . The Real Property Tax Law itself, pro • vides that any conveyance to a tax certificate purchaser “shall be subject to cancellation by reason of . . . (c) any defect in the proceedings affecting jurisdiction upon constitutional grounds . . . R.P.T.L. § 1020(3).

      . In Ryan, the parties had contracted upon the assumption that a lien held by plaintiff’s assignor on defendant’s equipment was superior to all other liens, including one held by the Small Business Administration. A federal court subsequently held that the S. B.A. lien was superior. In the state court action, defendant raised mistake of law as a defense to an action on the contract and was granted rescission. The court characterized the situation as a “mutual mistake as to the applicability of existing law to the factual situation here at hand.” 406 P.2d at 797.

      . Nor would the New York courts have complete freedom to declare “New York law” in view of the explicit limitations imposed by New Brunswick v. United States, supra. Cf. Aquilino v. United States, 363 U.S. 509, 80 S.Ct. 1277, 4 L.Ed.2d 1365 (1960) ; id. at 516 (Harlan, </., dissenting) ; Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943).

      . As Justice Frankfurter has written: “The underlying assumptions of our dual form of government, and the consequent presumptions of a legislative draftsmanship which are expressive of our history and habits, cut across what ’might otherwise be the implied range of legislation.” Some Reflections on the Reading of Statutes, Cardozo Memorial Lectures, (Ass’n of the Bar of the City of New York) 215, 232.

      . Section 1464(6) reads:
      “In the event that any grantee under such conveyance is unable to obtain possession of the real property conveyed to him by reason of any error or irregularity in the assessment thereof, in the levying of a tax, or in any proceedings for the collection of any tax, the board of trustees shall refund to the purchaser the money so paid with interest, the same to be audited and paid as other village charges.”


source: Caselaw Access Project

author: CHAMBERS, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Enrique Rodriguez BRIZUELA, Defendant, Marie Carlile, Surety.
    No. 74-2130.
    United States Court of Appeals, Ninth Circuit.
    Dec. 9, 1974.
    Philip A. DeMassa (argued), San Diego, Cal., for defendant.
    William Shaw, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.

      Before CHAMBERS and GOODWIN, Circuit Judges, and EAST, District Judge.

        . The Honorable William G. East, United States District Judge for tlie District of Oregon, sitting by designation.

   OPINION

CHAMBERS, Circuit Judge:

Brizuela was found guilty in September, 1973, of smuggling heroin into the United States and on October 29, 1973, was sentenced to 15 years in prison. Pending appeal, he is on liberty on a $200,000 bond with Marie Carlile as a surety.

Since the date of the taking of the direct appeal, it would appear that Brizuela has become “unavailable” or not readily available. The district court has ordered the Carlile bond forfeited. This occurred in January, 1974, while his appeal was still pending.

We hold that the order of forfeiture must be reversed.

Now for a few more details about the bond and the forfeiture. The bond was an appearance bond. By its terms no obligation to appear was imposed on defendant until this Court of Appeals was through with the case. (The obligation was in a great many more words.) The appeal on the conviction was dismissed in May, 1974, some four months after the forfeiture of bail was ordered.

We cannot sustain the government’s contention that Carlile’s appeal was too late. This is for the reason we hold that the intervening motion for reconsideration filed in the district court tolled the running of time for the appeal until after the district court ruled upon it. Theodoropoulos v. Thompson-Starrett Company, 418 F.2d 350 (2d Cir. 1969).

In reversing for proceedings consistent herewith, we point out some things we have not held.

1. That the bond is a bad bond.

2. That this bond can’t be forfeited.

3. That in another case there can’t be a bond with more stringent terms.

4. That during the course of an appeal the district court cannot impose additional conditions on the release (i. e. requiring a new bond with new provisions as a condition of continued enlargement).

Also, we should point out that the United States attorney is under the misapprehension that Brizuela’s direct appeal on his conviction has been reinstated. No such thing has happened.

We incline to the view that the district court could have revoked the bail and ordered forfeiture (during the course of Brizuela’s direct appeal) if Brizuela had violated some condition of the bond at the time of forfeiture. On this bond, he had not. However, we suggest that if a case is on appeal and a forfeiture is sought, it is better practice to get the criminal case temporarily remanded.

We believe that, if the mandate in criminal appeal has been spread (or if it has not been spread, but is spread in the future), the next steps are obvious. We do say that the bondswoman should be given, in the subsequent proceedings, some opportunity to produce the defendant; otherwise, we do not enlarge.

The bond is obviously not forfeitable in the prior marijuana conviction.

Prior forfeiture orders should be vacated and a new start made.

      . The conditions of the bail bond on appeal read as follows:
      “NOW, THEREFORE, the conditions of this obligation are such that if the said Enrique Rodriguez Brizuela shall appear in person or by his attorney, in the United States Court of Appeals for the Ninth Circuit on such day or days as may be appointed for the hearing of said cause in said Court and prosecute his appeal and shall abide by and obey all orders made by said Court in said cause: and if said defendant shall surrender himself in execution of said judgment and sentence appealed from as such Court may direct, if the judgment and sentence be affirmed or modified by the said United States Court of Appeals for the Ninth Circuit or the appeal be dismissed; and that if the said defendant will appear for retrial in the United States District Court for the Southern District of California and abide by and obey all orders made by said Court on such day or days as may be appointed for retrial by said United States District Court provided the said judgment and sentence against him be reversed; and if the defendant appears as ordered, then this bond is to be void, but if the defendant fails to perform this condition payment of the amount of the bond shall be due forthwith. If the bond is forfeited and if the forfeiture is not set aside or remitted, judgment may be entered upon motion in the United States District Court for the Southern District of California against each debtor jointly and severally for the amount above stated together with interest and costs, and execution may bo issued or payment secured as provided by the Federal Rules of Criminal Procedure and by other laws of the United States.”


author: SIMPSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Arturo Jaime Lerma SANCHEZ and Carlos Guillermo Salinas, Jr., Defendants-Appellants.
    No. 73-2737.
    United States Court of Appeals, Fifth Circuit.
    Feb. 24, 1975.
    Rehearing Denied April 4, 1975.

      Phil Burleson, Dallas, Tex., for Sanchez.
    Michael P. Gibson, Dallas, Tex., William C. Wright, Laredo, Tex., for Salinas.
    Frank D. McCown, U. S. Atty., W. E. Smith, Alex H. McGlinchey, Asst. U. S. Attys., Fort Worth, Tex., for plaintiff-appellee.
    Before BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

The appellants, Arturo Jaime Lerma Sanchez (Lerma) and Carlos Guillermo Salinas, Jr. (Salinas) were tried and found guilty before a jury at Abilene, Texas, in the Northern District of Texas, on May 21 — 25, 1973 under an indictment returned by a Northern District grand jury in the Fort Worth Division of that court. The indictment, returned April 24, 1973 charged the two appellants, in Count 1, together with eleven co-defendants, with conspiracy, Title 21, U.S.C. § 846, to distribute cocaine, a narcotic drug and a Schedule II controlled substance, to persons in the Arlington-Fort Worth-Dallas, Texas area, and in Overland Park, Kansas in violation of Title 21, U.S.C. § 841(a)(1). Only the two appellants went to trial. Ten co-defendants had previously plead guilty to one or more counts of the indictment. One co-defendant, Manuel Sandoval Martinez (Martinez) was then under arrest and in jail in the Republic of Mexico and unavailable for trial. Count 1, the conspiracy count was the only count of the six-count indictment naming Lerma and Salinas, neither of whom was mentioned in any of the ten overt acts alleged in Count 1. Counts 2, 3, 4, 5 and 6 dealt with related activities of other defendants none of whom went to trial. Upon conviction and after denial of post-trial motions (following an evidentiary hearing), Lerma and Salinas were each sentenced to fifteen years confinement to be followed by a special parole term of three years. This appeal followed. We affirm.

The principal grounds of error urged by Salinas are: (1) abuse of discretion by the trial court in denying a transfer under Rule 21(b), F.R.Crim.P. from the Northern District of Texas to the Laredo Division of the Southern District of Texas; (2) violation of his Sixth Amendment rights by the denial in part of his motion for Bill of Particulars and the failure of the trial court to require the government to furnish witness statements and other discovery earlier than the morning before the trial, and (3) the sentence to the maximum statutory confinement period of fifteen years was cruel and unusual punishment, in violation of the Eighth Amendment, in view of Salinas’ youth, his prior unblemished record, and his honorable service in the Vietnam war.

Lerma advances the same grounds of appeal as those urged by Salinas except the question raised as to length of sentence, and additionally asserts that the evidence was insufficient to prove his participation in the conspiracy.

I The Evidence

In view of Lerma’s separate claim of insufficiency of the evidence we must state the evidence in some detail.

The government’s case was built around the testimony of an indicted co-defendant and co-conspirator, Rodolfo Serna Laurel, Jr. (Laurel). The jury was entitled to find the following facts which emerged from his testimony and that of other indicted co-defendants, principally Arturo Trevino Guevara (Guevera) and Peter Harrison Walker (Walker), together with the testimony of the undercover agents who worked on the case.

Laurel had lived in Laredo, Texas the greater part of his 22 years, but was living in Corpus Christi during most of the critical period involved, from November, 1972 through February, 1973. He and Salinas, also a Laredo native, were old acquaintances, Salinas being related to Laurel’s aunt. He first met Lerma in November, 1972. At that time Salinas approached Laurel in Laredo and asked if he had connections for cocaine. Laurel said he would see if connections were available and met with Salinas later in November at the Laredo home of Salinas’ grandmother, on Victoria Street, where Salinas shared an upstairs apartment with his brother, Jorge. Lerma came in later and the projected cocaine transaction was discussed by the three, Laurel, Salinas and Lerma. Laurel said he could place six ounces of cocaine, and a price of $600 per ounce net to Salinas and Lerma was indicated. Lerma left for a time. After his return, the discussion of a deal in cocaine continued. That evening the three went to a restaurant in Nuevo Laredo, Mexico where they met with Sandoval Martinez. Martinez was employed by a business next door to Lerma’s brother, for whom Ler-ma worked for some years. Lerma and Martinez had been friends for ten or twelve years, according to Lerma. After a whispered conference between Martinez and Salinas, Salinas told Laurel he might get the six ounces of cocaine in December. Arrangements were made for Laurel to call and inquire whether Salinas had any shrimp (the agreed code word for cocaine). After several calls producing negative replies, Laurel was told that shrimp were available and he went from Corpus Christi to Laredo, to the Salinas apartment upstairs at the home of his grandmother, meeting Ler-ma and Salinas there. The six ounces of cocaine were delivered after being tested with Chlorox. Laurel sold the cocaine for $675 an ounce to Guevara, after calling Guevara at his residence in Austin, Texas. The cocaine was delivered by Laurel to Guevara in Corpus Christi on December 24, 1972. Walker accompanied Guevara to this meeting. Arrangements were made with Salinas in Ler-ma’s presence for Laurel to sell three more ounces to Guevara for an advance of $1,000. The cocaine was procured by-Laurel as before, from Salinas in Ler-ma’s presence at Salinas’ apartment, again after several telephone calls, some to Lerma, some to Salinas.

In early January, 1973, Guevara called Laurel asking for an additional pound of cocaine. After an exchange of telephone calls with Salinas, Laurel went to Laredo where Lerma and Salinas had 8 ounces of cocaine in a plastic bag and some Procaine on the table in the same apartment. The 8 ounces of cocaine were cut by admixing 8 ounces of Procaine to produce a pound. Laurel took this mixture to Corpus Christi where he delivered it to Guevara and Walker. During this time Salinas and Lerma both knew the identity of Laurel’s buyer, Guevara, and approved delivery of cocaine to him on a credit basis. Thereafter, in late January, 1973, 2V2 pounds of cocaine were procured by Laurel from the same source in a similar manner. During this visit, in the same Nuevo Laredo restaurant as before, the three met with Sandoval Martinez at which time Lerma conferred with Martinez in a voice too low for the others to hear. Laurel stayed several days in Laredo awaiting delivery of the two and one-half pounds of cocaine which was made by Salinas. Laurel delivered the cocaine to Guevara and Walker, who took 2 pounds to Fort Worth, where they delivered it to a co-defendant Larry Branum. Branum was arrested in Arlington, Texas, January 26, 1973 with this cocaine in his possession. Kathleen Branum, his wife, was arrested with him, as were the co-defendants Larry Speake, Richard Ray and Richard Garnett. A short time later Walker was caught in Kansas City, Kansas in possession of the remaining one-half pound of the original two and one-half pound consignment. When Laurel learned of the loss of the two pounds during Branum’s arrest he notified first Lerma and later Salinas by telephone.

In an effort to recover from these serious business losses of large quantities of contraband, an additional two pounds of cocaine was procured by Sanchez and Lerma from their source (presumably Sandoval Martinez) and delivered to Laurel in February, 1973, by directing Laurel to a hole in the fence surrounding the home of the other grandmother of Salinas. Salinas had told Laurel he could pay off the cost of the last two pounds by “working and selling more cocaine.” Laurel, in possession of this two pounds of cocaine was arrested at the Love Field Airport, Dallas, February 14, 1973 soon after deplaning from a Braniff International Air Lines Flight from Corpus Christi.

With Laurel’s arrest on February 14, along with the apprehension of Walker and Guevara in Kansas City on February 2, 1973, the arrests of Larry Speake, Richard Ray and Richard Garnett, along with the two Branums in Arlington on January 26, 1973, and a sale of one ounce of cocaine to undercover BNDD agents on January 19, 1973 by the defendants Hattersley and Cowan, ten of the defendants were apprehended with cocaine in their possession. These arrests in possession of contraband were the basis for the pleas of guilty by the ten defendants named. This in turn led to the tracing, by testimony and proof of telephone calls from Southwestern Bell Telephone Company records, of all of the various deliveries of cocaine from Salinas and Lerma at the 1904 Victoria Street, Laredo apartment of Salinas to Laurel. Agents arrested Lerma and Salinas at the grandmother’s 1904 Victoria Street residence in Laredo on April 10, 1973. Initially, Salinas attempted to resist arrest by threatening the officers with a .357 Magnum pistol. Lerma was in possession of a .45 pistol at that time, both defendants had knives in their belts and there is testimony that both attempted to flee the scene.

The billing record of telephone calls from November 1972 through February 1973 included outgoing and incoming calls between Laurel’s residence in Corpus Christi, (and after February 20, 1973 in Laredo), Salinas’ residence and that of his grandmother in Laredo, Lerma’s residence in Laredo, Sandoval Martinez’s office in Nuevo Laredo, Arturo Guevara’s Austin residence and that of his father in Laredo. Guevara’s frequent telephone contacts with Branuxn’s number in Fort Worth and with an Overland Park, Kansas number are also reflected in the billing records.

Of significance to this review of the evidence, the calls to and from Lerma’s residence included two calls to Laurel’s Corpus Christi number and one call from that number on December 18, 1972, two calls from Laurel’s number on December 20, 1972, calls to Laurel’s number on December 28, 1972 and January 7, 1973, one call from Laurel’s number on January 23, 1973, and three calls from Guevara’s Austin, Texas number on January 27, 1973.

Lerma’s direct testimony, given through an interpreter, was principally to the effect that he was not guilty of taking part in the conspiracy laid in the indictment. As indicated, supra, he admitted on cross-examination a long, friendly association with Sandoval Martinez. He identified Laurel as a person met at Salinas’ house, but denied making calls from his residence to Laurel in Corpus Christi. On re-direct he denied any connection with sales of cocaine to Laurel, stating that he understood Laurel’s business with Sandoval Martinez to be in connection with the importation of curios, wrought iron and other artifacts from Mexico. He said he made telephone calls to Sandoval Martinez in this connection. He stated further that he and Salinas were involved in a business venture involving cantaloupes and other produce during the critical period from November, 1972 through February, 1973.

Although he was cross-examined about the numerous telephone calls, his acquaintance with other defendants and other matters, the direct testimony of Salinas was concerned with his military service upon graduation from high school from 1989 to 1972 (including a tour of duty in Vietnam), his job history following his military discharge, and his plans for further schooling. He stated flatly that he had no part in the alleged conspiracy.

Motions for judgments of acquittal by each defendant were denied at the close of the prosecution’s case, and renewed and again denied at the close of all the evidence.

II Sufficiency of the Proof as to Lerma’s Guilt

By his appeal Salmas does not question the sufficiency of the evidence to support his conviction. Sufficiency of the evidence as to him is one ground of the appeal of Lerma Sanchez, but we find that his contentions in this respect lack substance. The existence of the conspiracy to distribute cocaine and commission of numerous overt acts by co-conspirators to advance its purpose were fully established by the testimony of Laurel and the investigating agents. United States v. Falcone, 1940, 311 U.S. 205, 210, 61 S.Ct. 204, 207, 85 L.Ed. 128, 132; United States v. Menichino, 5 Cir. 1974, 497 F.2d 935; United States v. Perez, 5 Cir. 1973, 489 F.2d 51.

It is the law of this circuit in conspiracy prosecutions that once the existence of an agreement or common scheme of conspiracy is shown — usually by inferences from relevant and competent circumstantial evidence — slight evidence is all that is required to connect a particular defendant with the conspiracy, and further that once it appears that a particular defendant joined the conspiracy, the acts of his co-conspirators done in furtherance of the conspiracy are attributable to him and he is equally liable for them.

While one’s mere presence at the scene of a crime or mere association with persons involved in a criminal enterprise is not sufficient to prove participation in a conspiracy, United States v. Falcone, supra; United States v. Menichino, supra; United States v. Owen, 5 Cir. 1974, 492 F.2d 1100, 1103-1104, there is much more involved here than mere presence or occasional association. Lerma was consistently and routinely present at each critical juncture when arrangements were set up, when delivery was made, when the cocaine was tested or adulterated, and when payment was made. Telephone calls to and from his house to the telephone numbers of other conspirators coincided closely in time with the periods of increased activity surrounding each delivery of contraband to Laurel. The jury was entitled to view these events, coming as they did within a regularly recurring pattern, as more than coincidence, indeed as circumstances pointing with compelling force to Lerma’s guilt, inconsistent with any other reasonable hypothesis. This was sufficient.

In United States v. Warner, 5 Cir. 1971, 441 F.2d 821, cert. denied, 1972, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58, Judge Wisdom stated the test under which we review the sufficiency of the evidence in cases of this nature:

“[I]n criminal cases based on circumstantial evidence our task is to determine whether reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused’s innocence.” 441 F.2d at 825.

Accord, United States v. Velasquez, 5 Cir. 1974, 496 F.2d 1009; United States v. Amato, 5 Cir. 1974, 495 F.2d 545; United States v. Edwards, 5 Cir. 1974, 488 F.2d 1154; United States v. Fonten-ot, 5 Cir. 1973, 488 F.2d 315, 321, and numerous other cases.

Extensive review of the record leaves us firmly of the view that the government’s case against Lerma fully met the rules announced in the cases cited.

Ill Denial of Transfer to the Southern District of Texas

Complaint is made by each of the appellants that the district court abused its discretion in denying pre-trial motions filed in their behalf, seeking a transfer of their trial from the Abilene Division of the Northern District of Texas to the Laredo Division of the Southern District of Texas, where they resided and near where, they assert, most of their prospective defense witnesses resided. At the time these motions were heard, May 8, 1972, the only defendants whose cases were undisposed of were Lerma, Salinas and the missing defendant Sandoval Martinez. Each of the ten other defendants, principally residents of the Northern District of Texas in the Dallas-Fort Worth-Arlington area, had entered guilty pleas. Appended to each motion were affidavits of persons in or near Laredo, asserting that they had been asked to be either material witnesses or character witnesses for the defendants at trial, but could not afford to travel to Abilene. The affidavits also asserted on the basis of personal knowledge that the Lerma (or Salinas) family lacked the money to pay for the affiant’s travel and subsistence expense to attend the scheduled Abilene trial. Both motions asserted the inconvenience and unnecessary expense to the defendants of a trial in Abilene, that the case as to the Northern District defendants was fully disposed of, and any acts and conduct charged on the part of Lerma and Salinas occurred in or near Laredo in the Southern District. Neither motion nor any of the appended affidavits made any disclosure of the nature of the testimony expected from any of the several affi-ants.

The denial of these and other pre-trial motions by Judge Mahon was reviewed by Judge Brewster in his denial of motions of Lerma and Salinas for new trial, June 25, 1973.

We consider that the Motions to Transfer were properly denied, in an exercise of judicial discretion, for reasons sufficiently outlined by Judge Brewster in his June 25, 1973 opinion on Motions for New Trial:

Venue in this case is determined by Rule 18, F.R.Crim.P., which provides that “the prosecution shall be had in a district in which the offense was committed.”
It has long been the law that in federal courts venue of prosecution for conspiracy lies in the district where the agreement was made or an overt act in furtherance of the conspiracy was committed. Hyde v. United States, 225 U.S. 347, 363, 32 S.Ct. 793, 56 L.Ed. 1114 (1912); Miller v. Connally, 5 Cir., 354 F.2d 206, 208 (1965); Bellard v. United States, 5 Cir., 356 F.2d 437 (1966), cert. den., 385 U.S. 856, 87 S.Ct. 103, 17 L.Ed.2d 83; United States v. Williams, 5 Cir., 424 F.2d 344 (1970): Rule 18, F.R.Cr.P.
The conspiracy here involved covered a wide territory from the Texas-Mexican border to Kansas City, Kansas. The government’s evidence supported the theory that Lerma and Salinas were large suppliers near the top of a dope ring that could furnish cocaine in big lot quantities; that the defendant, Laurel, was one of their jobber outlets; that Laurel sold the cocaine obtained from them to wholesalers in the area of the University of Texas at Austin, Texas Christian University at Fort Worth, and University of Texas at Arlington. While the conspiracy “agreement” between Laurel, Lerma and Salinas may have been formed in the Laredo Division of the Southern District, several of the other defendants joined in the conspiracy in Fort Worth and Dallas. Many of the overt acts alleged in the indictment occurred in the Fort Worth-Dallas area, which is in the Northern District of Texas. Laurel was arrested at the Dallas airport as he was bringing in a large quantity of cocaine to complete a sale. The defendants, Branum and wife, Garnett, Speake and Ray were arrested in a motel room at Arlington, Texas, as they prepared to consummate a sale of two pounds of cocaine to government undercover agents for the wholesale price of $26,400.00. Under those circumstances, venue was properly laid in the Northern District of Texas.
While the indictment was returned into the Fort Worth Division, the case was tried in the Abilene Division. At the time of the arraignments, there was not enough time left to get the case to trial in Fort Worth before Judge Brewster went to Abilene for the May docket there. Judge Mahon already had a full setting for May. These defendants were in jail, and Judge Brewster inquired of their counsel in open court if they wanted the case tried in Abilene where it could be reached in May. Counsel for Lerma and Salinas stated they consented to the trial in Abilene.
What these defendants actually-wanted was to get the case transferred to the city where they lived and possibly had some influence. Residence of the defendants is not a relevant factor. United States v. Valle, D.C.S.D.N.Y., 16 F.R.D. 519 (1955).

IV Ruling on Motions for Bills of Particulars and Other Discovery Motions

The next specification of error urged on appeal by both Lerma and Salinas, is stated by Lerma as follows:

“DID THE TRIAL COURT VIOLATE THE DEFENDANT’S SIXTH AMENDMENT RIGHTS BY VIRTUE OF ITS OVERRULING DEFENDANT’S MOTION TO QUASH THE INDICTMENT AND ITS DENIAL OF SUBSTANTIALLY ALL OF DEFENDANT’S TIMELY-FILED BILL OF PARTICULARS?”

Salinas’ brief states the question in the following terms and adopts the arguments of Lerma’s brief:

“DID THE TRIAL COURT VIOLATE THE DEFENDANT’S SIXTH AMENDMENT RIGHTS BY DENYING THIS DEFENDANT AND HIS CO-DEFENDANT THE RIGHT TO DISCOVERY?”

This section of Lerma’s brief opens by asserting that Amendment VI guarantees that an accused in a criminal prosecution shall enjoy the right “to be informed of the nature and cause of the accusation against him,” that this right is closely connected to the right under Amendment V to, be held to answer for a crime only on a presentment or indictment of a grand jury, and that, taken together, Amendments V and VI in this respect mean that one must first of all be charged by indictment or information, and secondly, must be fully informed of the charges against him by information, indictment or bill of particulars filed pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure.

The purpose of the protection of the amendments is correctly stated to be twofold: (1) to apprise the defendant of what he must be prepared to meet, and (2) in case other proceedings are taken against him for a similar offense, whether the records show with accuracy to what extent he may plead former acquittal or conviction, citing Russell v. United States, 1962, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240; Hagner v. United States, 1931, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861, 865; Cochran and Sayre v. United States, 1895, 157 U.S. 286, 290, 15 S.Ct. 628, 630, 39 L.Ed. 704, 705-706.

These postulates are, of course, abstractly unassailable. Undergirded by them, Lerma’s argument is that Count I of the indictment, after charging formation of a conspiracy by the thirteen defendants in the language of the general conspiracy statute, Title 18, § 371, and outlining generally its objects in three paragraphs containing no names, and then alleged ten overt acts committed in the furtherance of the conspiracy, none by Lerma or Salinas, and none committed in Laredo, Texas. Lerma argues that the part played by these two defendants not being alluded to in the overt acts alleged or elsewhere in Count I of the indictment, they were entitled to be advised at least of the general nature of the proof relied on by the government to tie them into the conspiracy. The argument continues that it was error to refuse to require the government to make appropriate disclosure in response to the Motions for Bills of Particulars, for listing of names of witnesses, for disclosure of the name or names of informants and for discovery and inspection of tangible evidence.

These Motions for Bills of Particulars were mainly denied by Judge Mahon on May 8. He did require some disclosure but not nearly all that was sought. Substantial disclosure was required by Judge Brewster on the morning the trial opened, Monday May 21. Some information, including the fact that Laurel would testify for the government, and a copy of his statement was furnished on the Sunday preceding trial.

When the motion for new trial was argued before Judge Brewster, he asked defense counsel what he had failed to get that he thought he was entitled to. The only complaint was the lateness in furnishing Laurel’s statement on the day before trial commenced, that is on Sunday May 20.

The record is not free from doubt, but we find nothing to show that the government was aware before Sunday May 20 that Laurel would testify as a government witness at trial. Such knowledge is contra-indicated by the fact that Laurel, Lerma and Salinas amicably occupied the same jail cell until shortly before trial.

At all events, the Jencks Act Statute, Title 18, U.S.Code § 3500 would not have entitled the appellants to a copy of Laurel’s statement until the conclusion of his direct testimony at trial, as Judge Brewster correctly noted in the excerpt from his opinion, infra.

We think that the nature of this trial, with its evidence of far-flung dealing in several states for several months in large quantities of cocaine, involving numerous people, was such as to warrant its treatment as an exceptional case, in the informed discretion of the trial judge calling for limitations upon the time and the amount of pre-trial discovery. Prejudice in this connection, as to either defendant’s rights, is not demonstrated on this appeal.

Once again, we turn to the extensive opinion filed by Judge Brewster in connection with the denial of the new trial motions for further explication of the sound reasons for the methods utilized by the district court in dealing with the numerous pre-trial discovery and bill of particulars motions:

The other complaints directed at Judge Mahon’s rulings relate to discovery. The practice in the Fort Worth Division to require the government to give much more information than the law requires is long established and rather well known in judicial circles. During his four years as United States Attorney here before going on the bench about a year ago, Judge Mahon followed that practice in criminal cases in this Court. He became a believer in it, and has established it in cases in his Court. The practice is very informal. The United States Attorney is required to show his entire file and make a complete disclosure to defense counsel in all but the most exceptional cases. A limited disclosure is made where the file also contains matters relating to investigation of unrelated offenses, or where there is a question about whether the identity of the informer should be revealed. Those decisions are not left to the United States Attorney. Under the practice, he must secure the approval of the judge to make less than a full disclosure.
Such a practice results in making available to defense counsel in advance of the trial not only statements he could not get under the criminal discovery rules, but also reports of the investigative officers. Those reports are valuable because they summarize the government’s case and usually indicate how the evidence will be used to prove the offense.
Judge Mahon left it to the parties to proceed under this practice, knowing that almost invariably it works out all discovery and bill of particular problems.
When the motion for new trial was presented to Judge Brewster, he inquired of defense counsel what he had failed to get. He said that his only complaint about discovery was that he was not given the statement of the defendant, Laurel, until Sunday before the case went to trial on Monday. That was considerably earlier than he could have obtained the statement if he had been held to what the law allowed him. Under 18 U.S.C. § 3500, he was not entitled to it until after Laurel testified on direct examination.
There is nothing in the record to indicate that the government knew, prior to the date it gave the statement to defense counsel, that Laurel would actually testify. The indications were to the contrary. It had permitted him to remain in the same cell block in jail with Lerma and Salinas for some time. During that period, Lerma and Salinas did not suspect that he would be a witness against them, for they were congenial with him. The first indication of suspicion that he would be a government witness came after he was separated from them shortly before the trial, when Salinas’ uncle called Mrs. Laurel and told her that “it would not help” Laurel if he testified for the government.
Cases involving substantial traffic in dope are ones where this Court does not require disclosure in advance of the trial of matters that may affect the welfare of witnesses. A man who would traffic dope into schools would not hesitate to threaten or harm a witness if he thought he could help his defense by doing so.
Prior to the trial, the United States Attorney gave to defense counsel a Xerox copy of all of the government file except a few small portions dealing with unrelated conspiracies involving other persons which were excerpted. A Xerox copy of the complete file was furnished the Court with the excerpts properly identified. The Court examined the entire file en camera and concluded that the excerpts related to matters having no possible relevance, and did not require such excerpted matters to be furnished to the defense. That file is being sealed and made a part of the records in this case for examination by the appellate court. That was the practice followed by this Court in United States v. Ram-zy, 5 Cir., 446 F.2d 1184 (1971), where Chief Judge Brown said at p. 1187:
“Finally, we reject the argument that the defense was prejudiced by the denial of access to a small portion of the government’s file. The Trial Court, in fact, was extraordinarily generous in its allowance of discovery, and after examining the excluded material we have found that it contains nothing that could possibly have materially aided the defendant in the preparation of his case.”
380 F.Supp. 1263-1264.

We add only that our own examination of the sealed file confirmed the accuracy of Judge Brewster’s appraisal of its contents.

Error in respect of these rulings is not demonstrated.

V The Severity of Salinas’ Sentence

We come finally to consider the separate contention of Salinas that imposition upon him of the maximum confinement sentence provided under Title 21, U.S.C. §§ 841(a)(1), and 846, 15 years, violated his Amendment VIII rights prohibiting the infliction upon him of cruel and unusual punishment. This question need not detain us for long.

It is urged that Salinas’ age, 26 years at the time of trial, his record of honorable military service for three years after completion of high school, his holding of several respectable jobs after his separation from the military, and his plans for further education, together with his lack of any serious prior criminal record, entitled him to receive some lesser sentence. The sentence imposed is asserted to be cruel and unusual punishment, violative of the Amendment VIII.

The government counters by pointing to the pollution of the health and morals of college boys, varsity football players, et cetera, by execution of a sinister and deep laid plan to distribute cocaine to these young people and through them to other college' age youngsters, emphasizing in this connection that the telephone records introduced indicated calls placed by members of the conspiracy to a number of cities known to be university centers, viz: Austin, Denton, Huntsville, Waco and Kingsville, Texas. Salinas is identified as the hub of the conspiracy, the person who initiated it by seeking out Laurel to inquire if he had connections for cocaine and by arranging for the supply from Sandoval Martinez, on a credit basis, through Lerma’s friendship with Martinez and his own friendship with Lerma. The government urges consideration in this connection also of the testimony as to Salinas drawing a .357 Magnum pistol on the arresting officers, as indicating his contempt for the law and his hardened character.

With all these considerations before him, we cannot say that the able and experienced trial judge abused his discretion in the imposition of a maximum confinement sentence. The record demonstrates in numerous places Judge Brewster’s meticulous concern for the rights of the appellants on trial. Indeed, in no other respect than the length of the sentences imposed do counsel on appeal in any way question Judge Brewster’s fairness.

We refuse, in conscience, to adopt a rule to the effect that a maximum sentence, ipso facto, is cruel and unusual punishment when imposed upon a criminal defendant without a serious prior record. To do so would be to effectively repeal the maximum sentence which the Congress has given trial judges discretion to impose.

No infirmity is demonstrated in the sentence imposed upon Salinas.

Affirmed.

      . The indictment under which appellant’s trial was held superseded a similar indictment returned April 4, 1973. Reindictment was made necessary when it was found that Ler-ma was erroneously named in the first indictment as Francisco Lerma. This actually was the name of Lerma’s brother. The indictments were identical in all other respects.

      . The trial court’s extensive opinion on motion for new trial is reported, United States of America v. Jaime Lerma Sanchez and Carlos Guillermo Salinas, Jr., D.C.N.D.Tex., 1973, 380 F.Supp. 1260.

      . Samples from each seizure were identified a cocaine by expert government testimony.

      . Also on cross-examination, although he admitted acquaintance with Laurel and Lerma and long acquaintance with Guevara and Walker, Salinas denied knowing Sandoval Martinez.

      . United States v. Warner, 5 Cir. 1971, 441 F.2d 821, 830, cert. denied, 1972, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58; United States v. Jones, 9 Cir. 1970, 425 F.2d 1048, 1051; United States v. Knight, 9 Cir. 1969, 416 F.2d 1181, 1184; Lopez v. United States, 5 Cir. 1969, 414 F.2d 909.

      . United States v. Warner, Note 5, supra, 441 F.2d at 830, Grimes v. United States, 5 Cir. 1967, 379 F.2d 791, 795, Hernandez v. United States, 9 Cir. 1962, 300 F.2d 114, 121.

      . The trial judge was Judge Brewster, then Chief Judge of the Northern District of Texas. The defendants, who were held in jail in default of posting $250,000 appearance bonds, agreed to the trial being moved from the Fort Worth Division, where the indictment was pending to the Abilene Division, where Judge Brewster was scheduled to sit in May, so as to permit a May 21, 1972 trial. While Judge Brewster was out of his district attending a Chief Judges’ meeting, Judge Mahon on May 8 heard and passed upon numerous defense pre-trial motions, including the Motions to Transfer under Rule 21(b), F.R.Crim.P., discussed in the text (Part III) of this opinion, as well as the Motions for Bills of Particulars and Additional Discovery dealt with in the succeeding section of this opinion, titled “IV Rulings on Motions for Bills of Particulars and Other Discovery Motions.”

      . Arlington is in the same county as Fort Worth.

      . The $26,400.00 in currency was there and had been counted out by one of the defendants. The “street value” of this two pounds after cutting would have been over $250,000.00. It was slated for final distribution in the area of University of Texas at Arlington and of Texas Christian University. Branum was a recent dropout at U. T. A. at Arlington. Garnett, Speake and Ray were first stringers on the football team at Texas Christian University.

      . Abilene is about 150 miles west of Fort Worth. Both Divisions are in the Northern District of Texas.

      . He was probably happy to get the case away from Fort Worth, where Texas Christian University is located. Most defense lawyers would rather not have tried the case in the city where the three T. C. U. football players had been widely publicized.

      . In the Valle case, Judge Irving Kaufman said: “. . . . The Constitution and Rule 18 do not compel a trial in the place of residence of the defendants which in effect these defendants seek by the instant application.” 380 F.Supp. at pp. 1262-1263.

      . Judge Mahon after carefully considering the numerous discovery motions, granting them in part and alluding to the usual liberal rules for discovery in the Northern District of Texas as well as to the recognized exceptions made in cases where a question is present as to disclosing an informer’s identity or where the life or safety of witnesses might be endangered by complete disclosure, this case being treated as coming under the exception, stated (App. 200A):
      “All right. Of course, Counsel, your clients, from the standpoint of saying they don’t know what they are charged with, your clients are charged with a conspiracy in connection with these nine other individuals and that it occurred in Texas during these particular dates and your clients will be able to advise with you as to what, if anything, they had to do in connection with any of these people on any dates during this period of time anywhere in Texas or in Kansas and prior to the time they testify you are going to be given any statements or summaries that they have at that time.”
      Alluding to the broad general discovery policy of his district, followed in this case to the extent permissible under the recognized exceptions, Judge Mahon (a former United States Attorney) continued (App. 201A):
      “I am going to overrule the motion for a bill of particulars. Of course, the Government has answered and they will, of course, be giving you additional information at the time of trial. So I overrule the motion for more definite bill of particulars.”
      As noted in the text, all appropriate information was furnished prior to trial, although appellants complain that it was furnished so late as to be of limited value in trial preparations.

      . It was apparently the custom in the Northern District of Texas for out-of-town lawyers, both for the defense and for the government, to proceed to an outlying division point, such as Abilene, several days prior to an important trial and work weekends in preparation for the opening of trial.

      . The exceptional cases are ones where witnesses will likely be endangered.

      . This frequently occurs where the informer is working on several cases during the same period. The reports of the government agents usually cover all the transactions on which they are working with the informer.

      . In a place like Abilene, out-of-town lawyers awaiting trial usually work on their cases on weekends. Both prosecution and defense counsel arrived at Abilene several days before the trial and worked most of the Saturday and the Sunday before the trial started on Monday.

      . The defense got much more than the law required. It got all the official reports of the narcotics agents and statements of persons who did not testify.

      . Although, except for Lerma, aged 31 years, and perhaps Sandoval Martinez, whose age does not appear, he was the eldest of the persons charged in the conspiracy. Laurel was 22, Guevara 24, Walker 23, Branum 25, Branum’s wife Kathleen, 26, Hattersley 21, Cowan 20, and the three T.C.U. football players, Speake, age 23, a senior, Ray, age 23, a senior, and Garnett, age 20, a junior at T.C.U.

      . On cross-examination he admitted out of the presence of the jury that at age 20 he had served 50 days of a sixty-six day sentence in California for a misdemeanor offense, violation of Section 11 of the Health Safety Code of California either for being in a house where narcotics were being used, or for being in a place where marijuana was being smoked. The trial judge expressed the view that this offense did not involve moral turpitude and excluded evidence of it from consideration of the jury.


author: MULLIGAN, Circuit Judge:

text:
    RONSON CORPORATION, Plaintiff-Appellant, v. LIQUIFIN AKTIENGESELLSCHAFT, Defendant-Appellee, and Liquigas S.p.A. et al., Defendants, Louis V. Aronson II et al., Counterclaim-Defendants.
    No. 361, Docket 74-2161.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 16, 1974.
    Decided Dec. 12, 1974.
    Milton S. Gould, New York City (Shea Gould, Climenko & Kramer, Michael Lesch, New York City, of counsel), for plaintiff-appellant.
    Donald J. Zoeller, New York City (Mudge, Rose, Guthrie & Alexander, Milton Black, John B. Sherman, P. Jay Wilker, New York City, Douglas J. Dan-zig, of counsel), for defendant-appellee.
    Before DANAHER , FEINBERG and MULLIGAN, Circuit Judges.

       Senior Circuit Judge of the District of Columbia, sitting by designation.

   MULLIGAN, Circuit Judge:

This is an appeal by Ronson Corporation (Ronson) from an order of the United States District Court for the Southern District of New York, Hon. Charles H. Tenney, District Judge, dated August 21, 1974, which granted certain relief to Li-quifin Aktiengesellschaft (Liquifin), the defendant in an action commenced by Ronson on June 7, 1974.

Liquifin, a Lichtenstein corporation, is the largest stockholder of Ronson, a New Jersey corporation, owning 36.4% of its outstanding common stock. The Ronson action sought to enjoin and set aside Li-quifin’s use of proxies which had been solicited during a proxy fight for control of Ronson. A host of violations of the federal securities laws were charged by Ronson in the complaint and by Liquifin in a counterclaim.

The annual meeting of Ronson was scheduled for June 13, 1974, at which time the shareholders would elect nine directors to the Ronson board. Although each side had objected to the voting of certain proxies by the other, it was agreed between the warring factions that the annual meeting would take place as scheduled. The parties entered into a “ground rules agreement,” which contained Rules and Presumptions concerning the validity of proxies, and which provided for the appointment of two inspectors from the Corporation Trust Company of New York who were to conduct the election in Newark, New Jersey pursuant to the agreement.

Prior to the meeting, Ronson had announced that it would propose a ticket of only seven candidates for the board, since it believed that Liquifin was entitled to two board members. Liquifin nominated nine candidates. The election was held on June 13th as scheduled, and the annual meetirig was adjourned pending the issuance of a final report and certification by Messrs. Mead and Bloom, the inspectors. On June 20, 1974, Mead and Bloom privately revealed the unofficial results to Ronson and Liquifin. All of the Ronson candidates were elected, but two of them received 138 votes less than the other five. Two of the Liquifin nominees, Malone and Markley, received 138 votes more than the other Liquifin. candidates. The difference in the respective votes among candidates on each side was accounted for by the fact that two independent shareholders had split their ballot, casting 138 votes for each of five of the Ronson candidates and 138 votes for Malone and Markley. This unofficial tally therefore disclosed that the entire management slate and two Liqui-fin candidates, Malone and Markley, would fill the nine vacancies on the board.

After the inspectors revealed the tentative results of the election, a schedule for future events was agreed upon. Pursuant to the schedule, Mead and Bloom heard challenges to ballots and proxies by both sides on July 1st, and announced decisions on those challenges on July 2nd. A tentative report of the inspectors was scheduled to be issued on July 8th. However, on July 5th — after the results of the election became known but before the issuance of the report— Liquifin notified Mead and Bloom that it wished to have its shares considered as having been cast in such a way as to bring about the election of two other Liquifin nominees, Messrs. Marfuggi and Zoeller, in place of Malone and Markley. Ronson objected to this plan. On July 8th, Mead and Bloom issued their inspectors’ report, which showed that the Ron-son board consisted of the seven management candidates and Messrs. Malone and Markley.

On July 9, 1974, the parties appeared before Judge Tenney on a motion by Liquifin to compel Mead and Bloom to count Liquifin’s ballot in accordance with its request of July 5th, to restrain the issuance by the inspectors of the July 8th report as a final and definitive report of the election results, and to compel the inspectors to issue a final report designating Marfuggi and Zoeller as the Liquifin representatives on the board. On the same day, Messrs. Malone and Markley indicated a desire to be replaced by Marfuggi and Zoeller.

On July 9, Judge Tenney permitted the issuance of the July 8th report as a final report with respect to the seven management nominees. In a memorandum opinion and order dated August 21, Judge Tenney found in favor of Liquifin concerning the other two board members. It is from this order that Ronson appeals.

The initial and crucial question before us is whether the order in issue is appealable. Ronson argues that, under 28 U.S.C. § 1292(a)(1), courts of appeals have jurisdiction of appeals from interlocutory orders granting injunctions. It argues that the order is injunctive since the Liquifin motion sought an order enjoining Ronson and the inspectors from publishing the inspectors’ report as the final result of the annual meeting and compelling Ronson and the inspectors to issue a report reflecting the election of Marfuggi and Zoeller. However, in International Products Corp. v. Koons, 325 F.2d 403, 406 (2d Cir. 1963), Judge Friendly, writing for the court, construed section 1292(a)(1) to apply only to “injunctions which give or aid in giving some or all of the substantive relief sought by a complaint . . . and not as including restraints or directions in orders concerning the conduct of the parties or their counsel, unrelated to the substantive issues in the action, while awaiting trial.” (footnote omitted). See Siebert v. Great Northern Dev. Co., 494 F.2d 510, 511 (5th Cir. 1974) (per curiam); Weight Watchers, Inc. v. Weight Watchers Int’l, Inc., 455 F.2d 770, 774 (2d Cir. 1972); Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1208 (2d Cir. 1970); Stricklin v. Regents of Univ. of Wisconsin, 420 F.2d 1257, 1259 (7th Cir. 1970); Miller v. United States, 403 F.2d 77, 78 (2d Cir. 1968); Fleischer v. Phillips, 264 F.2d 515, 516 (2d Cir.), cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959). The rule has also been stated as follows: “[A]n order incidental to a pending action that does not grant part or all of the ultimate injunctive relief sought is not an injunction, . . . notwithstanding the fact that it purports to enjoin.” 9 J. Moore, Federal Practice K 110.20 [1], at 233 (2d ed. 1973) (footnote omitted). Since the order here does not grant part or all of the ultimate relief sought in this action, which alleges numerous violations of the federal securities laws regulating proxy solicitations and related matters, the appeal cannot be grounded on section 1292(a)(1).

Here, the appellees in their counterclaims sought injunctive relief and damages, urging that the Ronson proxy material for the 1974 annual meeting was false and misleading. The election was held in any event on the basis of the agreement referred to earlier because of the expense involved in postponement. The present contretemps is wholly independent of and apart from any issues raised in the complaint or the counterclaims. In fact, the only legal issue raised below — -the question of the right of stockholders to change their vote — is a question to be determined by New Jersey State law and has no relevance to the alleged violations of federal securities laws which have prompted the bitter contest in the district court.

Ronson argues further that Judge Tenney’s order is “final” within 28 U.S.C. § 1291 under the so-called Cohen rule, Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The Cohen rule permits an appeal if the order appealed from finally determines a claim which is “separable from, and collateral to” rights asserted in the action; which presents a “serious and unsettled question”; and which cannot await final judgment since at that time “it will be too late effectively to review the present order, and the rights conferred . . . will have been lost, probably irreparably.” 337 U.S. at 546-547, 69 S.Ct. at 1225.

While the order here is, in light of the circumstances noted above, collateral, we do not think that the other Cohen criteria are met. In deciding whether there is a serious and unsettled question involved in the appeal, we have stressed that our determination must “settle the matter not simply for the case in hand but for many others.....” Donlon Indus., Inc. v. Forte, 402 F.2d 935, 937 (2d Cir. 1968), or must “settle a point once and for all, . . . ” Weight Watchers, Inc. v. Weight Watchers Int’l, Inc., supra, 455 F.2d at 773. See also International Business Machines Corp. v. United States, 480 F.2d 293, 298 (2d Cir. 1973) (en banc); American Express Warehousing, Ltd. v. Transamerica Ins. Co., 380 F.2d 277, 280-282 (2d Cir. 1967). There is no issue of such wide-ranging importance here. The powers of the election inspectors depend upon the construction of a New Jersey statute, and the ground rules agreement makes its interpretation depend upon the law of New Jersey. Aside from the fact that no question of federal securities law is posed and that the state law involved is that of a state outside the circuit, the factual setting here is so unique that no case in point has been unearthed by either party. An opinion here would not solve anything once and for all, except the highly unique case before us. With our appellate caseload at an all-time high, we see no point in adding to it, and, in fact, under section 1291 we have no choice but to decline to do so.

Of course, once this case is finally decided in the district court and appealed, it will probably be too late to review Judge Tenney’s order seating Marfuggi and Zoeller since by then another election will have come and gone. But this does not end the inquiry into the third part of the Cohen test. Here it is difficult to understand how Ronson is irreparably damaged by having these men on its board. Ronson continues to control the board, and Liquifin, as understood and intended by the parties, has two representatives on the board. Ron-son has lost no power over corporate affairs beyond that which it wished to surrender. The determination on the merits as to the validity of the proxy solicitation practices of both sides will be ultimately determinative of the entire issue as to the proper composition of the board. Ronson now claims that, since Zoeller is counsel to Liquifin, his presence on the board constitutes a conflict of interest and creates irreparable harm to it. This again is a question of New Jersey law, and, in any event, we feel it should be brought before Judge Tenney, who found specifically that the election created no prejudice to Ronson, but did not consider the belated conflict of interest claim.

In the event that Ronson succeeds on the merits in this litigation, then there may be no Liquifin directors. If Liqui-fin succeeds on the merits, then there may be no Ronson directors. There is at this juncture no point in an appellate court making a determination which may well be shortly mooted. The policy of discouraging piecemeal and fragmentary appeals has recently been emphasized by the Supreme Court. In United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 3099, 41 L.Ed.2d 1039 (1974), the Court stated:

The finality requirement of 28 U.S.C. § 1291 embodies a strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals. This requirement ordinarily promotes judicial efficiency and hastens the ultimate termination of litigation.

See also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 2149-2150, 40 L.Ed.2d 732 (1974).

This policy compels the dismissal of this appeal.

Appeal dismissed.

      . We do not consider Belknap v. Leary, 427 F.2d 496 (2d Cir. 1970) to be contrary. There, the lower court issued an order restraining the Police Commissioner and other police officials from failing to protect participants in a lawful demonstration. This court considered the order, in form a temporary restraining order, to be essentially affirmative and therefore an injunction within section 1292(a)(1). There, however, the injunction apparently involved the ultimate relief sought in the underlying action.

      . We do not suggest that the district court should abstain from hearing and determining the state issues which are involved. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). However, state law issues are particularly inappropriate vehicles for piecemeal appeal when we are limited by the Cohen rule to considering only that small class of .appeals which will settle the law once and for all.

      . This finding was made by Judge Tenney in the absence of a contention by Ronson, urged for the first time before us, that it suffers injury from the presence of Liquifin’s counsel on the Ronson board.


author: PER CURIAM.

text:
    Herbert McINTYRE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-1881.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 10, 1975.
    Decided Jan. 13, 1975.
    Herbert McIntyre, filed brief pro se.
    Donald Stohr, U. S. Atty. and Richard E. Coughlin, Asst. U. S. Atty., St. Louis, Mo., filed typewritten brief for respondent-appellee.
    Before GIBSON, Chief Judge, and HEANEY and ROSS, Circuit Judges.
   PER CURIAM.

The district court rejected Herbert McIntyre’s petition for credit against a federal sentence for time spent in the St. Louis City Jail. McIntyre has appealed, and we affirm the decision of the trial court. '

The relevant facts are as follows:

(1) On August 29, 1973, McIntyre was arrested on a federal charge of theft from an interstate shipment.

(2) On September 21, 1973, he was released from custody on a $5,000.00 bond.

(3) On September 24, 1973, McIntyre waived indictment and entered a not guilty plea to the federal charge. On November 5, 1973, he changed his plea to guilty but was not then sentenced.

(4) On November 7, 1973, he was arrested by the St. Louis police and was charged in a warrant issued the next day with second-degree burglary by the State of Missouri. He was held in the city jail.

(5) On November 9, 1973, McIntyre’s federal bond was raised to $25,000.00.

(6) On December 7, 1973, he was sentenced in federal court to three years imprisonment on the charge under which he was arrested on August 29, 1973.

(7) McIntyre continued to be incarcerated in the city jail until August 26, 1974, when he entered a guilty plea in the state case to the reduced charge of accessory after the fact to second-degree burglary. The state court sentenced him to one year imprisonment on that date.

(8) On August 29, 1974, McIntyre was turned over to federal authorities by the state authorities. However, he continued to be held in the city jail until he was transported to the United States Penitentiary at Terre Haute, Indiana on September 19, 1974.

McIntyre claims that he was taken into custody by federal marshals on November 9, 1973, and held in their custody at the city jail until September 11, 1974. He wants this time credited to his three year federal sentence pursuant to 18 U.S.C. § 3568 which provides that “[t]he Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.”

The record reveals, however, that from November 7, 1973, until August 29, 1974, McIntyre was being held by state authorities on the state burglary charge. His only appearances before the federal court were obtained by means of writs of habeas corpus ad prosequendum directing the United States Marshal to secure McIntyre’s release from state custody in order to bring him before the federal judge and then to return him to state custody.

Furthermore, it is clear that Missouri credited McIntyre with the time spent in jail from November 7, 1973, to August 26, 1974, because only three days after being sentenced by the state court to one year imprisonment he was released from state custody and turned over to federal authorities.

This Court has held unequivocally that a state prisoner who is also on detainer for federal violations should not receive credit on his federal sentence when he was given credit on the state sentence for the same period of time. Shields v. Daggett, 460 F.2d 1060, 1061 (8th Cir. 1972). See also United States v. Dow-ney, 469 F.2d 1030, 1032 (8th Cir. 1972); United States ex rel. Derengowski v. United States Attorney General, 457 F.2d 812, 813 (8th Cir. 1972); Doss v. United States, 449 F.2d 1274, 1275 (8th Cir. 1971).

It is evident, therefore, that McIntyre’s claim is without merit. He was properly in state custody from November 7, 1973, to August 29, 1974. The time spent awaiting the state trial on August 26, 1974, was credited on the state sentence. And the sentence computation record shows that McIntyre’s federal sentence commenced on August 29, 1974. There is no reason to credit him for time spent in the city jail from November 9, 1973, to September 11, 1974, as claimed.

The judgment of the district court is affirmed.

      . McIntyre filed what he denominated a “Motion for Credit of Time” in the district court which had sentenced him originally. We treat this as, in effect, a motion to correct the sentence under 28 U.S.C. § 2255; which, of course, is properly filed in the sentencing court. Outlaw v. Connett, 460 F.2d 1257 (5th Cir. 1972).