author: JAMESON, District Judge: MERRILL, Circuit Judge

text:
    Marcus COVINGTON, Jr., Plaintiff-Appellant, v. Donald ANDERSON, Adjutant General of the Military Department of the State of Oregon, et al., Defendants-Appellees.
    No. 72-1085.
    United States Court of Appeals, Ninth, Circuit.
    Nov. 12, 1973.
    Merrill, Circuit Judge, dissented and filed opinion.
    Don H. Marmaduke, Charlen Merten (argued), Portland, Or., for plaintiff-appellant.
    Lee Johnson, Atty. Gen., E. Nordyke, Asst. Atty. Gen., Portland, Or., John W. Osburn (argued), Salem, Or., for defendants-appellees.
    Before MERRILL and TRASK, Circuit Judges, and JAMESON, District Judge.

       Honorable W. J. Jameson, United States Senior District Judge for the District of Montana, sitting by designation.

   JAMESON, District Judge:

This appeal is from an order granting summary judgment in favor of defendants-appellees in an action by plaintiff-appellant, Marcus Covington, Jr., seeking declaratory and injunctive relief and damages for his suspension from flight status as a jet pilot with the Oregon Air National Guard (OANG). The defendants-appellees are officials of the Oregon Military Department.

Defendants filed a motion to dismiss and, in the alternative, for summary judgment, basing their motion for summary judgment on the pleadings, a supporting memorandum, and numerous exhibits. In opposing the motion plaintiff relied upon the complaint, his affidavit, depositions of defendant-appellee Doolittle and three other officers of the Oregon National Guard, and a supporting memorandum. Following a hearing the court entered an order reading: “Defendants’ motion for summary judgment is hereby granted.”

Factual Background

On January 7, 1971 the United States Department of Defense issued an order directing all Air National Guard units to reduce jet pilot strength to “authorized” levels by February 28, 1971. In Oregon this required a reduction from 38 to 34 pilots.

By direction of General Doolittle, Chief of Staff of the Oregon Air National Guard, Lt. Col. R. J. Schmidt, Commander of the 142d Fighter Group, wrote a letter on January 27, 1971 to all of the jet pilots informing them of the reduction order, requesting immediate notice from any pilot who contemplated early retirement, resignation, or transfer, and stating that “the next, and obvious step” would be “selection of pilots for involuntary separation.” This would be done “by a special committee * * * representing all elements of the Squadron and Group”. It was explained that the committee’s determination would be based on the pilot's “total member” value, defined as “past performance as a pilot, an officer, and a participant in organizational activities, plus an estimate of future potential based on age, grade, current professional training, participation, civilian occupation and availability in the event of State or Federal emergencies.”

There was no response to this letter from any of the pilots. On February 12, 1971 General Doolittle formed a “committee” of seven subordinate officers, all jets pilots potentially- subject to suspension, to evaluate the pilots and recommend six for involuntary separation, not later than February 17, 1971.

The committee met on February 13 and 14, with six voting members and one non-voting member acting as recorder. They excluded from consideration for suspension General Doolittle, Lt. Col. Bergen, who had just assumed command of the fighter squadron, and the members of the committee. All other pilots were discussed both favorably and unfavorably, but no personnel records or other written or documentary material were considered by the committee.

On February 14 the committee submitted its written report and, as instructed, recommended six pilots for involuntary separation, listing the six names in order of its preference for suspension, with Covington’s name appearing second. Doolittle decided not to accept the first name recommended, but accepted the committee’s recommendations on the next four pilots.

On February 18, 1971 Covington was notified by letter that he was “one of four pilots selected” and that he was “suspended from flying” effective that date. The notice stated that the “Selections considered all aspects of each pilot’s total participation, production, availability and comparative potential in the program”. Covington was given “the option of being assigned to a non-rated [non-flight] position or being separated from the Oregon ANG”. Coving-ton chose the first alternative and effective February 28, 1971 was reassigned to the position of civil engineering staff officer.

On March 4, 1971 the Assistant Adjutant General (Air) of the Oregon National Guard requested the Chief of the National Guard Bureau to suspend plaintiff and three other pilots “from flying status effective 22 February 1971 because of reassignment to non-rated positions”. On March 12, 1971 by Order of the Secretaries of the Army and the Air Force Covington was officially suspended from flying status by the Chief of the National Guard Bureau.

Contentions of Parties

In urging remand and entry of summary judgment in his favor, appellant contends that (1) officials of the Air National Guard violated Air Force Regulation No. 11-1 when they caused appellant “to lose his position as a jet pilot without a hearing and on the basis of an investigation by a board that (was) not impartial”; and (2) state officials, in reducing the peace-time strength of the state’s Air National Guard for economic reasons, may not, in the absence of exigent circumstances, “constitutionally cause a jet pilot to lose his position without affording him any procedural due process”. Appellees contend that

(1) Air Force Regulation No. 11-1 “has no application to the exercise of discretionary authority to reassign or detail officers to duties other than flight duty”; and (2) “The exercise of the authority to appoint, assign, reassign, transfer or detail to and from units within the organized militia is discretionary and not subject to judicial review.”

Air Force Regulation No. 11-1

Air Force Regulation No. 11-1 (AFR 11-1) prescribes administrative practices for “the conduct of investigations by boards of officers”. The “pri-. mary duty of a board is to develop and consider the evidence concerning the matter under investigation, to arrive at clear, consistent findings and, where required, to make recommendations.”

Paragraph 6a of the regulation provides that “In every case in which the conduct, efficiency, fitness, or pecuniary liability of any person is to be investigated” the person concerned must be given written notice of the investigation “at a reasonable time in advance of the convening of the board”. Paragraph 10a provides:

“A person whose conduct, efficiency, fitness, or pecuniary liability is under investigation will be extended the privilege of counsel, as provided in paragraph 8, will be permitted to be present at all open sessions of the board, to cross examine witnesses appearing against him, and to call witnesses and present evidence in his own behalf.”

Paragraph 17 provides that “In all cases covered in paragraph 6a”, the report of the proceedings shall be “submitted to the staff judge advocate for review as to legal sufficiency” before final action can be taken by the commanding officer.

It is undisputed that the committee appointed by General Doolittle did not conduct a hearing or otherwise comply with the procedures prescribed by AFR 11-1. We agree with appellees, however, that the regulation was not applicable to the procedures followed by the committee in recommending that appellant and three other pilots be suspended from flight status in compliance with the directive to reduce the jet pilot strength to the “authorized” level.

Considering the regulation in its entirety, it seems clear that it was intended to apply to investigations as a result of a charge of misconduct or where findings of the board may lead to a formal charge. Here there was no charge of malfeasance, misfeasance, lack of technical flying skill, or any other personal or technical deficiency. It is true, as appellant argues, that the committee considered his “conduct, efficiency, and fitness”, but this was for the sole purpose of making recommendations to comply with the directive to reduce the number of pilots to the authorized strength of the unit.

There was no regulation requiring the appointment of the committee. General Doolittle himself could have selected four pilots for suspension from flight status, free from the requirements of AFR 11-1, and without, as he put it, bothering anybody else. As will be discussed infra, Doolittle’s action would not have been subject to judicial review, even if arbitrary.

We conclude, as the district court apparently did, that AFR 11-1 did not apply to the committee’s recommendation that appellant be suspended from flight status.

Reviewability of Military Decisions

Appellant next contends that in the absence of exigent circumstances necessitating summary action, an air national guard pilot is entitled to a hearing before he may be removed from his position by state officials as part of a peacetime economy measure, and that the procedure here followed violated his due process rights under the Fourteenth Amendment.

In considering the reviewability of the action taken in this case, we note at the outset that the right of an air national guard pilot to seek judicial review is the same as that of any member of the Armed Forces of the United States. Under Art. I, § 8, cl. 16 of the Constitution of the United States, Congress is vested with the power to “provide for organizing, arming and disciplining the Militia [now National Guard], and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” Congress enacted appropriate legislation pursuant to Art. I, § 8, cl. 16. “The Guard is an essential reserve component of the Armed Forces of the United States, available with regular forces in time of war.” Gilligan v. Morgan, 413 U.S. 1, 6, 93 S.Ct. 2440, 2444, 37 L.Ed.2d 407, 413 (1973).

As a general rule, military administrative decisions are not subject to judicial review, except for the single inquiry of whether the military had jurisdiction of the subject matter and person and acted in accordance with military law. Arnheiter v. Ignatius, 292 F.Supp. 911, 917 (N.D.Cal.1968), aff’d, 435 F. 2d 691 (9 Cir. 1970). In an exhaustive review of the case law, the district court in Arnheiter concluded that “the Supreme Court is prepared to relax the traditional non-reviewability rule sufficiently to admit ultimate, collateral federal court review of claims by military personnel of denial of constitutional due process in such matters as court martial convictions which involve life, liberty or other penalty, and administrative discharges from the service which involve their quasi property rights.” Id. at 920. Here there was no court martial, discharge or challenge to military jurisdiction. Although appellant argues that the committee violated military law, AFR 11-1, we have concluded that this regulation is not applicable.

As recognized in Arnheiter, supra at 920-921, change in duty assignments are subject to the non-reviewability rule. We agree with the court in that case that “Any attempt of the federal courts, absent some direction or permission from the Congress to do so, to take over review of military duty assignments, commands and promotions would obviously be fraught with practical difficulties for both the armed forces and the courts.” Id. at 921.

This court (Arnheiter v. Chafee, 435 F.2d 691) affirmed so much of the district court’s opinion in Arnheiter v. Ignatius as held that the federal courts have no jurisdiction. We quoted from Orloff v. Willoughby, 345 U.S. 83, 73 S. Ct. 534, 97 L.Ed. 842 (1953), where the Court said in part:

“The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters. While the courts have found occasion to determine whether one has been lawfully inducted and is therefore within the jurisdiction of the Army and subject to its orders, we have found no case where this Court has assumed to revise duty orders as to one lawfully in the service.” 345 U.S. at 94, 73 S.Ct. at 540.

We conclude that the decision to recommend the suspension of appellant from flight status under the circumstances of this case is not subject to judicial review.

Affirmed.

MERRILL, Circuit Judge

(dissenting) :

It is undoubtedly true that Generál Doolittle could have discharged his duty to reduce jet pilot strength in a manner not involving the convening of a “board of officers.” In my view, however, the manner chosen by him did result in the convening of such a board with quasi-judicial functions which, through its “report,” has made findings prejudicially reflecting on appellant’s “conduct, efficiency and fitness.” This is precisely the kind of consequence which Air Force Regulation 11-1 says should occur only in the presence of some basic procedural safeguards, not provided here. It was on the basis of the report that appellant was suspended from flight status. In my view the authority of the committee to make such a report sufficiently establishes that appellant was “under investigation” in these respects to entitle him to the rights and privileges extended by Regulation 11-1.

Since it appears to me that this military body has ignored its own regulations, I would hold that a cognizable claim of denial of procedural due process is presented, and would reverse and remand for further proceedings.

      . As grounds'for the motion to dismiss, defendants claimed failure to join indispensable parties, sovereign immunity, and failure to state a claim upon which relief could be granted. Since we are affirming the summary judgment we need not consider the issues raised by the motion to dismiss.

      . It is recognized that a summary judgment is proper only where there is no genuine issue of a material fact or where viewing the evidence and the inferences which may be' drawn therefrom in the light most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of law. Appellant does not contend that there is any genuine issue of a material fact. Rather he argues that under the undisputed facts the case should be remanded and summary judgment entered in his favor.

      . In an affidavit in support of the motion for summary judgment Doolittle stated that the “committee was an informal committee to assist me in making a decision as to those pilots who were to be removed from flight status pursuant to the Order of the Department of Defense”. In his deposition Doolittle stated that he considered the group a “committee” rather than a “board * * * to evaluate somebody for misdoings, or a board to investigate problems”; that he “could have picked all of these peo-pie myself and not bothered anybody else,” but he was “tired of doing that kind of work”. He considered pilot reduction a “shame” because the group had just won an award as “the best unit in the United States” and he considered all of the pilots “top notch people”.

      . The report on Covington reads:
      “This officer does not possess the dedication standard desired for an OreANG pilot. He has a record of prolonged absence from UTAs. Pilot performance is minimum satisfactory. He is somewhat reluctant to follow orders and has a history of departure from prudent pilot practices.”
      The concluding paragraph of the report reads :
      “All of the OreANG jet pilots were considered by this evaluation committee. As you know, these six officers have contributed to the recent successes of this group to include outstanding flying achievements and superior flying safety record. They are clearly not much worse, in general, than many other officers we considered. We were forced to be hypercritical to separate the six from the rest of the group. The resultant priorities of our comments is an amplification of weaknesses felt necessary to make our decisions.”

      . This decision was based on the fact that Doolittle had heard this officer “was moving out of the area” and would be “taken care of in a different way”.

      . Appellant argues that the summary judgment in his favor should declare “that he was deprived of the procedural due process required by AFR 11-1 and the United States Constitution”, require appellees “to rescind their action causing his suspension from flying status until proper procedures are followed”, and require appellees “to pay or cause to be paid” to appellant the back pay lost by reason of his flight suspension.

      . Appellant complains, inter alia, that he was not granted the opportunity to present evidence in his own behalf or rebut unfavorable comments of the committee and that the committee failed to consider evaluations in his instrument and flying proficiency reports and Officer Effectiveness Reports. He claims that he lost a position which would enable him to earn $550 per month, that his retirement benefits were reduced, and that he has been damaged in his professional proficiency and career qualifications.

      . In his deposition General Doolittle testified in part:
      “Q On matters of this hind, I take it that the National Guard Bureau does follow the State’s recommendation, does it not?
      “A In matters of this kind where they were suspended only because there was an overage, where no malfeasance or no mal-performance, there was no — there was no misconduct or anything of this nature, or lack of flying skill, the suspension was not as the result of any personal or technical deficiency, it was just a requirement to reduce the number of people.
      “Q Well, all right. They do follow the recommendations of the State in such circumstances?
      “A When it is just a reduction in force, yes.”

      . General Doolittle testified that he was not concerned with the. evaluation of the committee : “I was interested in four names, I didn’t care whether they shot dice to get them.”

      . It may be noted also that if AFR. 11-1 were applicable to appellant, it would also be applicable to all pilots in the group. No charges had been filed against any of them. In the comparative evaluations to determine the six to be recommended for flight suspension, presumably it would have been necessary to conduct hearings (with the privilege of representation by counsel, right of cross-examination, and review by the staff judge advocate) on over 30 pilots within a little more than a month, in order to comply with the order of the Defense Department to reduce the jet pilot strength by February 28, 1971.

      . 32 U.S.C. § 101 et seq.

      . This was an action by a Navy officer seeking to have the federal court direct the Secretary of the Navy to convene a court of inquiry or other appropriate hearing pursuant to Navy regulations to investigate circumstances surrounding the officer’s relief from command of a destroyer escort ship assigned to duty in waters off Vietnam. The court granted defendants’ motion for summary judgment of dismissal.

      . See also eases cited and discussed in Arn-heiter, supra at 917-921.

      . Appellant argues that the authority of Orloff has been substantially impaired by Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed .2d 503 (1958). Harmon, however, is distinguishable. It involved the question of whether the Secretary of the Army in issuing less than “honorable” discharges had exceeded his authority under applicable statutes. Moreover, in Gilligan v. Morgan, supra, the Court cited that portion of Orloff v. Willoughby (345 U.S. 93-94, 73 S.Ct. 534) which contains the language quoted by this 'court in Arnheiter v. Chafee 413 U.S. at 10, 93 S.Ct. at 2446, 37 L.Ed.2d at 416.


source: Caselaw Access Project

author: LIVELY, Circuit Judge.

license: Public Domain

text:
    George H. HUMPHREYS, Administrator of the Estate of John S. Humphreys, Deceased, and George H. Humphreys, Individually, Plaintiff-Appellant, v. Herman TANN et al., Defendants-Appellees.
    No. 72-2225.
    United States Court of Appeals, Sixth Circuit.
    Submitted on briefs Oct. 2,1973.
    Decided Nov. 21, 1973.

      Theodore E. Wolcott, San Francisco, Cal., for plaintiff-appellant.
    Walter E. Rutherford, Haight, Gardner, Poor & Havens, New York City, H. Thomas Haacke, Jr., Dayton, Ohio, for defendants-appellees.
    Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.
   LIVELY, Circuit Judge.

John S. Humphreys, a resident of New York, was killed on March 9, 1967 in a mid-air collision between the Trans World Airlines (TWA) jetliner on which he was a passenger and a smaller Beech Baron aircraft owned by The Tann Company (Tann), a partnership. The collision occurred near Urbana, Ohio as the TWA plane was preparing to land at the Dayton, Ohio airport. No occupant of either plane survived. Numerous law suits were filed in various state and federal courts. The personal representative of John S. Humphreys sued Tann in the U.S. District Court for the Eastern District of Michigan, Southern Division, the place of residence of the partners and the place where the partnership was established and carried on its business. The Tann Corporation, a Michigan corporation, was also made a defendant. The complaint charged Tann with a number of acts of negligence and sought damages “under the common law and the statutes of the State of Ohio.” Jurisdiction of the court was based on diversity of citizenship.

By an order dated March 28, 1970, the Judicial Panel on Multidistrict Litigation directed that a number of the actions arising out of the air crash be “transferred to the Southern District of Ohio, Dayton Division, . . . for coordinated or consolidated pretrial proceedings with the related actions now pending in that court.” In re Air Crash Disaster Near Dayton, Ohio, 310 F.Supp. 798 (1970). The action of Humphreys’ representative against Tann was not included in the March 23 order, but was transferred as a tag-along case by an order of July 10, 1970. Thereafter counsel for the Humphreys estate participated in pretrial discovery and conferences among the many attorneys involved in the various actions. Two pretrial conferences were held by the district judge. At the pretrial conference held on December 15, 1970, one case, Downey v. TWA and Tann, was set for trial on March 22, 1971. This case had been filed originally in the Southern District of Ohio. None of the transferred cases was consolidated with Downey, nor was there any agreement that it would serve as a test case.

The trial of the Downey case resulted in a verdict for the plaintiff against TWA only. Judgment was entered on the verdict dismissing the actions against Tann by the plaintiff and by TWA on its cross-claim. Thereafter Tann filed a motion for summary judgment in the pending case of Humphreys v. Tann on the ground, “the plaintiffs in the remaining wrongful death actions against Tann are collaterally estopped from proving that the accident in question resulted from any negligence on the part of the Tann Company . . . On September 29, 1972 the district court entered an order granting Tann’s motion for summary judgment and dismissing the action. In re Air Crash Disaster Near Dayton, Ohio, 350 F.Supp. 757 (S. D.Ohio 1972).

On appeal it is first contended that the District Court for the Southern District of Ohio, as transferee court under an order of the Judicial Panel on Multidistrict Litigation, did not have the authority or power to grant summary judgment. The appellant maintains that his case was transferred from the court in Michigan to one in Ohio for the limited purpose of coordinated or consolidated pretrial proceedings, and that when these proceedings were completed the transferee court lost jurisdiction over the transferred case. This argument seeks to put too narrow a construction on the term, “pretrial proceedings.” While discovery by deposition, interrogatories and requests for admissions is a part of pretrial proceedings in the typical case, such proceedings are not limited to these activities. Various motions may properly be made as part of pretrial proceedings, including motions for summary judgment. The statute which permits the transfer of a case in multidis-triet litigation provides for the remand of the case to the district from which it was transferred, at or before conclusion of pretrial proceedings, “unless it shall have been previously terminated.” 28 U.S.C. § 1407. The termination may result from a voluntary dismissal or from action of the court. We adhere to our opinion in Reidinger v. Trans World Airlines, Inc., 463 F.2d 1017 (6th Cir. 1972), that the judge of a transferee court does have the power to hear and decide motions for summary judgment.

Appellant next contends that the district court improperly applied the doctrine of collateral estoppel in concluding that Tann was entitled to summary judgment. It is conceded that the Hum-phreys case was not consolidated with the Downey case and that the issue of Tann’s liability to the Humphreys estate was not submitted to the jury which found in favor of Tann on the Downey claims. It is argued that since the plaintiff in the transferred Humphreys case was not a party to the action between Downey and Tann it would be a denial of due process of law to deny him his day in court on the basis of the outcome of that case. Thus the question is narrowed to whether there is a requirement of mutuality of parties for application of the doctrine of collateral estop-pel.

In his Memorandum Opinion, the district judge stressed the fact that the motion was under consideration in the setting of multidistrict litigation and involved the effect of a prior federal court judgment on pending actions arising out of the same common disaster. In this context he concluded that federal law was controlling and that it permitted the application of collateral estoppel or preclusion to prevent relitigation of “an issue which has been fully and fairly adjudicated.” The district judge recognized that the courts of Ohio require mutuality of parties for the application of collateral estoppel, but held that there was “an over-riding federal interest in the effective administration of justice in the federal court system.”

While it is clear that Ohio requires mutuality of parties for application of collateral estoppel, Whitehead v. General Telephone Co., 20 Ohio St.2d 108, 116, 254 N.E.2d 10 (1969), it is not clear that there is a body of federal law which holds that mutuality is not required. The brief of the appellee, while arguing persuasively for application of federal rules, fails to establish the existence of such a body of law by authoritative citations. Much is made of the fact that Congress has enacted pervasive laws concerned with the utilization and control of the national airspace. It is also pointed out that the government was a defendant under the Federal Tort Claims Act in many of the passenger suits arising out of the Dayton collision. Furthermore, the very nature of airplane crashes involving scheduled passenger flights leads to numerous separate actions in different courts. Appel-lee asserts that when these actions are brought together for coordinated and consolidated pretrial proceedings under the Multidistriet Litigation Act, an orderly administration of the federal judicial system requires that federal law apply to all pretrial rulings. Unless there exists a federal rule of collateral estop-pel which is different from that of Ohio, however, it is not necessary to decide which law controls.

The first significant judicial move away from the res judicata requirement of strict mutuality of parties occurred in Bernhard v. Bank of America, 19 Cal.2d 807, 122 P.2d 892 (1942). The California Supreme Court, speaking through Justice Traynor, stated the issue and its determination as follows: for determining against whom a plea of res judicata may be asserted. The requirements of due process of law forbid the assertion of a plea of res judicata against a party unless he was bound by the earlier litigation in which the matter was decided. Coca Cola Co. v. Pepsi-Cola Co., supra [6 W.W.Harr. 124, 36 Del. 124, 172 A. 260], See eases cited in 24 Am. & Eng.Encyc., 2d Ed., 731; 15 Cinn.L. Rev. 349, 351; 82 Pa.L.Rev. 871, 872. He is bound by that litigation only if he has been a party thereto or in privity with a party thereto. Ibid. There is no compelling reason, however, for requiring that the party asserting the plea of res judicata must have been a party, or in privity with a party, to the earlier litigation.

The criteria for determining who may assert a plea of res judicata differ fundamentally from the criteria

No satisfactory rationalization has been advanced for the requirement of mutuality. Just why a party who was not bound by a previous action should be precluded from asserting it as res judicata against a party who was bound by it is difficult to comprehend. See 7 Bentham’s Works, Bowring’s Ed., 171. Many courts have abandoned the requirement of mutuality and confined the requirement of privity to the party against whom the plea of res judicata is asserted. Coca Cola Co. v. Pepsi-Cola Co., supra; Liberty Mutual Ins. Co. v. George Colon & Co., 260 N.Y. 305, 183 N.E. 506; Atkinson v. White, 60 Me. 396; Eagle, etc. Ins. Co. v. Heller, 149 Va. 82, 140 S.E. 314, 57 A.L.R. 490; Jenkins v. Atlantic Coast Line R. Co., 89 S.C. 408, 71 S.E. 1010; United States v. Wexler, D.C., 8 F.2d 880. See Good Health Dairy Products Corp. of Rochester v. Emery, 275 N.Y. 14, 9 N.E.2d 758, 112 A.L.R. 401. The commentators are almost unanimously in accord. 35 Yale L.J. 607; 9 Va.L.Reg.(N.S.) 241; 29 Ill.L.Rev. 93; 18 N.Y.U.L.Q. R. 565, 570; 12 Corn.L.Q. 92. The courts of most jurisdictions have in effect accomplished the same result by recognizing a broad exception to the-requirements of mutuality and privity, namely, that they are not necessary where the liability of the defendant asserting the plea of res judicata is dependent upon or derived from the liability of one who was exonerated in an earlier suit brought by the same plaintiff upon the same facts. See cases cited in 35 Yale L.J. 607, 610; 9 Va.L.Reg.(N.S.) 241, 245-247; 29 Ill.L.Rev. 93, 94; 18 N.Y.U.L.Q.R. 565, 566, 567; 34 C.J. 988, 989. * * * The cases justify this exception on the ground that it would be unjust to permit one who has had his day in court to reopen identical issues by merely' switching adversaries. 122 P.2d at 894.

The Bernhard opinion speaks of res judicata or “claim preclusion.” This court applied the rationale of Bernhard to collateral estoppel or “issue preclusion” in Davis v. McKinnon & Mooney, 266 F.2d 870 (6th Cir. 1959). There a plaintiff who fully litigated an issue against one defendant and lost was precluded from relitigating the same issue against a different defendant. In Mack-ris v. Murray, 397 F.2d 74 (6th Cir. 1968), this court applied Michigan law to a case in which the driver of an automobile owned by his employer was killed in a collision with a third party. The employer-owner of the deceased driver’s car obtained a judgment for property damages against the other driver. The estate of the deceased driver then sued the other driver and was granted summary judgment in the district court on the ground of collateral estoppel. This court reversed, discussing in detail the difference between the defensive use of collateral estoppel and its affirmative use. The same distinction between defensive and affirmative use of estoppel was noted by the Supreme Court of the United States in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), though it was not the basis of the decision.

In Zdanok v. Glidden Company, 327 F.2d 944 (2d Cir. 1964), offensive use of collateral estoppel permitted a stranger to the previous litigation to recover in a subsequent action against the unsuccessful defendant in the-earlier case. While treating the “offensive-defensive” distinction as a rule of thumb rather than a settled principle of law, the opinion points out that the case before it concerned a contract rather than factual questions of negligence, and prescribes conditions where abandonment of the mutuality requirement is proper.

In his Memorandum Opinion the district judge expressly adopted the holding in United States v. United Air Lines, Inc., 216 F.Supp. 709 (D.Nev.1962), aff’d sub nom., United Airlines, Inc. v. Wiener, 335 F.2d 379 (9th Cir.), cert, denied, 379 U.S. 951, 85 S.Ct. 452, 13 L. Ed.2d 549 (1964). That case arose out of a collision between a scheduled airliner and an Air Force plane on a training mission. Actions were filed in the United States District Court for the Southern District of California for the death of 24 passengers in the airliner and were consolidated for trial. The jury verdict held United Air Lines, Inc. liable for the death of its passengers. Thereafter, the District Court for Nevada granted summary judgment against United Air Lines in favor of the representatives of seven passengers whose cases had not been consolidated with the original 24 in the Southern District of California. In its opinion the district court stated:

While it is true that the general rule requires that there be identity of parties to invoke the doctrine of res judicata, nevertheless, the Courts, increasingly so in the last 20 years, have not adhered to that doctrine, and have held that no constitutional right is violated where the thing to he litigated was actually litigated in a previous suit, final judgment entered, and the party against whom the doctrine is to he invoked had full opportunity to litigate the matter and did actually litigate it.
The rule of non-mutuality is not a general one but a limited one to be determined from the facts and circumstances in each case whether or not it should be applied. 216 F.Supp. 709, 725-726.

Appellees have cited Antonioli v. Lehigh Coal & Navigation Co., 451 F.2d 1171 (3rd Cir. 1971), cert, denied, 406 U.S. 906, 92 S.Ct. 1608, 31 L.Ed.2d 816 (1972), as a case “wherein parties to the second action who had not been parties to the prior action were barred from re-litigating identical issues.” This statement is not supported by the opinion, which holds that there was a substantial identity of parties in the two actions and that the same parties complained of substantially the same wrong. The case was decided on principles of res judicata, with no issue of mutuality of parties being considered. The only case noted by appellees, or discovered through independent research, in which a previous judgment was held to estop a plaintiff who was not a party to the previous action is Cauefield v. Fidelity & Casualty Company of New York, 378 F.2d 876 (5th Cir.), cert, denied, 389 U.S. 1009, 88 S.Ct. 571, 19 L.Ed.2d 606 (1967). In that case the court applied Louisiana law and concluded, “. . . that presented with the unusual facts of the case before us, the Louisiana courts also would find the appellants are estopped by the state court judgment in order to preclude relitigation of the desecration issue.” 378 F.2d at 879. The facts in the case were most unusual in that the plaintiffs in the second action had testified in the trial of the first one to the very facts which would necessarily have been the basis of any recovery by them in the second trial. The jury in the first trial rejected this testimony and found for defendants. Both sets of plaintiffs were represented by the same attorneys; the second set of plaintiffs actively participated as witnesses in the first trial. Further, the Fifth Circuit’s holding is an application of Louisiana law expressly confined to the unusual facts of that case. Its reasoning is not regarded as controlling in the present ease.

The facts in the present case are quite different from those in Cauefield, supra. The administrator of the estate of John S. Humphreys chose an attorney to press his claim and the administratrix of the estate of Edward F. Downey chose a different attorney. They employed different strategies from the beginning. The Downey estate sued TWA and Tann jointly, whereas the Humphreys estate sued them separately in different jurisdictions. While the attorney for the Humphreys estate participated in coordinated pretrial activities under the mul-tidistrict litigation order, the cases were never consolidated for trial and no agreement was made that the outcome of Downey, would conclude the issues in other transferred cases. At the pretrial conference held by the transferee judge on December 15, 1970, the Downey case was set for trial. There was discussion of the procedure to be followed with respect to the other cases. The court indicated that it would try the cases which had originated in its jurisdiction and that the rest would be returned to the place where they were filed. When an attorney for the government stated that he did not expect to be bound by the testimony at the Downey trial, the court assured him that he would not be so bound since he was not a party to it. There is nothing in the proceedings to indicate an intention, or agreement, that persons not joined as plaintiffs in the Downey trial would be bound by its outcome.

While the doctrine of collateral estoppel permits a prior judgment to preclude relitigation of an issue previously determined on its merits, it may be applied in favor of a stranger to the first action, but only against a party to that action. This has been true from the beginning of the judicial development of the theory of collateral estoppel. In Bernhard v. Bank of America, supra, it was stated that three questions are determinative of the issue and that all must be answered affirmatively. The third question, “Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?” must be answered in the negative in this case. Humphreys’ administrator is not bound, under this classic test of preclusion, by the verdict in the Downey case. Writing for a unanimous Supreme Court in Blonder-Tongue v. University of Illinois Foundation, supra, Justice White stated the rule as follows:

Some litigants — those who never appeared in a prior action — may not be collaterally estopped without litigating the issue. They have never had a chance to present their evidence and arguments on the claim. Due process prohibits estopping them despite one or more existing adjudications of the identical issue which stand squarely against their position. 402 U.S. at 329, 91 S.Ct. at 1443.

We share the concern of the district court for the crowded dockets of federal courts and the proper utilization, of judicial time. However, we do not believe that these considerations can overcome the due process objection which was raised by the appellant as his first response to appellee’s motion for summary judgment and which he has relied upon continuously.

The judgment of the district court is reversed. The cause is remanded to the district court for return to the United States District Court for the Eastern District of Michigan in accordance with the procedures of the Judicial Panel on Multidistrict Litigation. Costs will be taxed to the appellees.


author: KOELSCH, Circuit Judge:

text:
    Clyde A. PERKINS, Plaintiff-Appellee, v. STANDARD OIL COMPANY OF CALIFORNIA, Defendant-Appellant.
    No. 71-1515.
    United States Court of Appeals, Ninth. Circuit.
    Nov. 16, 1973.

      Francis R. Kirkham (argued), Richard J. MacLaury of Pillsbury, Madison & Sutro, San Francisco, Cal., Wayne Hilliard of McColloch, Dezendorf, Spears & Lubersky, Portland, Or., for defendant-appellant.
    Ernest Bonyhadi, Bruce M. Hall (argued), of Rives, Bonyhadi, Hall & Epstein, Roger Tilbury, of Tilbury & Kane, Portland, Or., George R. Kucik (argued), Earl W. Kintner, James P. Mercurio of Arent, Fox, Kintner, Plotkin & Kahn, Washington, D. C., for plaintiff-appellee.
    Before HAMLEY, KOELSCH and DUNIWAY, Circuit Judges.
   OPINION

KOELSCH, Circuit Judge:

Both parties have requested our instructions with respect to the allowance of interest on certain awards of attorneys’ fees recovered by appellant in the district court and subsequently reduced by us on appeal. The question before us is the construction of “the date of the entry of the judgment,” as provided in the federal post judgment interest statute, 28 U.S.C. § 1961

Appellee Perkins prevailed in his private antitrust action against appellant, Standard Oil Company of California, on a decision by the U. S. Supreme Court [Perkins v. Standard Oil Co., 395 U.S. 642, 89 S.Ct. 1871, 23 L.Ed.2d 599 (1969) ], but the mandate of the Supreme Court made no reference to an award of attorneys’ fees.

The U. S. District Court for the District of Oregon denied Perkins’ subsequent application for attorneys’ fees under Section 4 of the Clayton Act, 15 U. S.C. § 15, on the ground that the section does not authorize a district court to make award for attorneys’ services rendered in appellate court proceedings. We affirmed, interpreting the Supreme Court’s omission as precluding an award of attorneys’ fees. The Supreme Court reversed, stating that its omission had “simply left the matter open for consideration by the District Court.” [Perkins v. Standard Oil Co., 399 U.S. 222 (1970) , at 223, 90 S.Ct. 1989 at 1990, 26 L.Ed.2d 534.]

Thereafter, on January 26, 1971, the district court entered a judgment awarding Perkins attorneys’ fees as follows:

1) $250,000 for services in the Supreme Court in Perkins v. Standard Oil Co., 395 U.S. 642, 89 S.Ct. 1871, 23 L.Ed.2d 599 (1969);
2) $25,000 for services in the Supreme Court in Perkins v. Standard Oil Co., 399 U.S. 222, 90 S.Ct. 1989, 26 L.Ed.2d 534 (1970); and
3) $14,180 for services in the district court on the application for attorneys’ fees [Perkins v. Standard Oil Co., 322 F.Supp. 375 (D.Or.1971)].

On February 12, 1973, we reduced the two awards for services in the Supreme Court to $116,562 and $11,680, respectively; we affirmed the $14,180 award; and we allowed Perkins an additional award of $1500 for his attorneys’ fees on that appeal. [Perkins v. Standard Oil Co., 474 F.2d 549 (9th Cir. 1973).] Our decision did not include instructions with respect to the allowance of interest on any of the awards.

Perkins petitioned for a writ of cer-tiorari in the Supreme Court, but that petition was denied on June 11, 1973. Since no stay had been obtained pending disposition of the petition for certiorari, our mandate had issued on March 5, 1973, in accordance with Rule 41, Federal Rules of Appellate Procedure.

On July 3, 1973, Standard paid the principal amount of all attorneys’ fees awards to Perkins. On that date, it also paid the interest on the affirmed $14,180 award, appropriately computing that interest from January 26, 1971, the date of entry of the original district court judgment. Rule 37, Federal Rules of Appellate Procedure.

Both parties have requested our instructions with respect to the allowance of interest on the two reduced Supreme Court awards and on the $1500

award authorized by our decision. This request is effectively a motion to recall and amend our mandate to include such instructions. This court has the power to recall and amend its mandate to protect the integrity of its own processes. Briggs v. Pennsylvania R. Co., 334 U.S. 304, 306, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948); Samson Tire & Rubber Corporation v. Rogan, 140 F.2d 457 (9th Cir. 1943); Huntley v. Southern Oregon Sales, 104 F.2d 153, 155 (9th Cir. 1939); accord, Petersen v. Klos, 433 F.2d 911, 912 (5th Cir. 1970).

Since the principal amount of each award was paid on July 3, 1973, interest thereon runs to and including July 2, 1973. The precise question before us is when, under the federal statute, interest on each of the awards commences to run. Though the question has been characterized as one “of considerable importance,” the Supreme Court has so far declined to decide it.

Under the provisions of § 1961 of the Judicial Code, 28 U.S.C. § 1961, the allowance of interest on a district court judgment is mandatory “ . . . from

the date of the entry of the judgment.” However, in situations where a judgment has been modified on appeal, the phrase has been subject to a variety of interpretations yielding a variety of results. See generally the excellent Note, Interest on Judgments in Federal Courts, 64 Yale L.J. 1019 (1955).

Standard contends that interest on each of the awards should be computed from the date of the denial of Perkins’ petition for certiorari, i. e., June 11, 1973. Perkins contends that the interest on the two awards for services in the Supreme Court should be computed from the date of the entry of the original district court judgment, i. e., January 26, 1971, while interest on the $1500 court of appeals award should run from the date of the filing of our decision, i. e., February 12, 1973.

Both parties cite state court decisions in support of their respective positions, and we recognize that some federal courts have read § 1961 to permit the application of state law in diversity cases. However, it is established that, where the cause of action asserted arises from a federal statute, questions of the allowance of post judgment interest in federal courts are governed solely by federal law. Milwaukee Towne Corp. v. Loew’s, Inc., 200 F.2d 17, 20 (7th Cir. 1952); Briggs v. Pennsylvania R. Co., 164 F.2d 21, 22 (2d Cir. 1947), affirmed without consideration of this point, 334 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948); Louisiana & Arkansas Ry. v. Pratt, 142 F.2d 847, 848 (5th Cir. 1944).

Standard contends that, since Perkins delayed the issuance of our mandate by petitioning for certiorari in the Supreme Court, interest under § 1961 should not commence to run until the date the Supreme Court denied that petition. We disagree. First, the petition occasioned no actual delay of issuance of our mandate since no stay had been obtained pending its disposition. And second, even if the petition did occasion some uncertainty with respect to the finality of our decision, Standard could have halted the running of interest on the award thought by Perkins to be inadequate by tendering payment of the principal amount thereof. See, e. g., Woodmont, Inc. v. Daniels, 290 F.2d 186 (10th Cir. 1961); Beeler v. American Trust Co., 28 Cal.2d 435, 170 P.2d 439 (1946); Pinkstaff v. Pennsylvania R. Co., 31 Ill.2d 518, 202 N.E.2d 512 (1964); Phillips v. Mills, 14 Md.App. 272, 286 A.2d 798 (1972); Annot., 15 A.L.R.3d 411 (1967).

Standard urges us to adopt the rule of Harris v. Chicago Great Western Ry., 197 F.2d 829 (7th Cir. 1952), a decision substantially on all fours with the instant case, in which the Seventh Circuit reduced a district court’s award of attorneys’ fees from $500,000 to $350,000 and allowed interest from the date of entry of the revised judgment. The Harris court reasoned at 836:

“ . . . [N] either the amount due for fees nor the due date of the obligation was authoritatively defined until our decision. There will be a final valid judgment only when a new one shall have been entered in conformity with our mandate.”

We decline to adopt the Seventh Circuit’s rule. In our view there exists no real distinction between judgments for attorneys’ fees and judgments for other items of damages. True, claims for “reasonable” attorneys’ fees, being unliquidated until they are determined by a court, are not entitled to pre-judgment interest as would be certain liquidated claims. But once a judgment is obtained, interest thereon is mandatory without regard to the elements of which that judgment is composed. Cf. United States v. Michael Schiavone & Sons, Inc., 450 F.2d 875 (1st Cir. 1971).

We further reject the Harris rationale that the reduction of a judgment by reducing a single item of damages, instead of the reduction by deletion of a whole item of damages, results in an entirely new judgment. Where a single item such as attorneys’ fees is reduced on appeal, the district court’s determination should be viewed as correct to the extent it was permitted to stand, and interest on a judgment thus partially affirmed should be computed from the date of its initial entry. E. g., Kneeland v. American Loan & Trust Co., 138 U.S. 509, 511, 11 S.Ct. 426, 34 L.Ed. 1052 (1891).

We alternatively hold that interest should run from the date of entry of the original judgment because that is the date on which the correct judgment should have been entered. Pratt, supra.

In so ruling, we decline to hold that the cost of the loss of use of a money judgment pending appeal should be borne by an injured plaintiff rather than a defendant whose initial wrongful conduct invoked the judicial process and who has had the use of the money judgment throughout the period of delay.

With regard to the $1500 award authorized by our decision, that award represented services which had not yet been performed at the time of the district court’s original judgment. We conclude that interest on that award should commence to run on the date of issuance of our mandate, i. e., March 5, 1973.

Accordingly, we recall and amend our mandate to include instructions with respect to the allowance of interest on the three awards of attorneys’ fees as follows:

1) on the $116,562 award, from January 26, 1971, to and including July 2, 1973;
2) on the $11,680 award, from January 26, 1971, to and including July 2, 1973; and
3) on the $1500 award, from March 5, 1973, to and including July 2, 1973.

It is so ordered.

      . Rule 37, Federal Rules of Appellate Procedure, provides as follows:
      “Unless otherwise provided by law, if a judgment for money in a civil case is affirmed, whatever interest is allowed by law shall be payable from the date the judgment was entered in the district court. If a judgment is modified or reversed with a direction that a judgment for money be entered in the district court, the mandate shall contain instructions with respect to allowance of interest.” [Emphasis supplied.]

      . § 1961 provides in pertinent part as follows :
      “Interest shall be allowed on any money judgment in a civil case recovered in a district court. . . . [and] shall be calculated from the date of the entry of the judgment, at the rate allowed by State law.”

      . Under that section, a successful plaintiff is entitled to treble damages, “. . . and the cost of suit, including a reasonable attorney’s fee.”

      . The question involves neither interest on a liquidated claim before it is reduced to judgment (see, e. g., United States v. Michael Schiavone & Sons, Inc., 450 F.2d 875 (1st Cir. 1971) ; Moore-McCormack Lines v. Amirault, 202 F.2d 893 (1st Cir. 1953) ; McCormack, Damages § 58 (1935)), nor interest as “just damages for . . . delay” under 28 U.S.C. § 1912.

      . In his dissent in Briggs v. Pennsylvania R. Co., 334 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948), Justice Rutledge, with whom Justices Black, Douglas and Murphy joined, observed at 313-314, 68 S.Ct. at 1043-1044, 92 L.Ed. 1403:
      “The extent to which the section [the predecessor of § 1961] gives interest is, of course, a distinct question, depending in this case on whether the section contemplates that the interest shall begin to run at one date or another-.
      “Since the Court does not decide that question, I reserve decision upon it. But I dissent from the refusal to decide it now. The question is of considerable importance for the proper and uniform administration of the statute; it is not entirely without difficulty; and the uncertainty as well as the conflict of decision should be ended. There is no good reason for permitting their indefinite continuance, to the perplexity of courts and counsel, and to an assured if unpredictable amount of injustice to litigants.”

      . See also Note, Interest on Verdicts and Judgments in the State and Federal Courts, 38 Notre Dame Law, 58 (1962) ; Annot., 4 A.L.R.3d 1221 (1965).

      . Perkins could have accepted such a tender without prejudice to his petition for certiorari (United States v. Hougham, 364 U.S. 310, 312, 81 S.Ct. 13, 5 L.Ed.2d 8 (1964) ; Cruz v. Pacific American Insurance Corporation, 337 F.2d 746, 750 (9th Cir. 1964)) ; or Standard could have paid the amount into court pursuant to Fed.R.Civ.Pro. 67 and 28 U.S.C. § 2041 to halt the running of interest (see, e. g., Shaver Transportation Co. v. Chamberlain, 399 F.2d 893, 895 (9th Cir. 1968)).


author: CHOY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Daniel Aloysius JONES, Defendant-Appellant.
    No. 73-1727.
    United States Court of Appeals, Ninth Circuit.
    Nov. 12, 1973.
    As Amended on Denial of Rehearing and Rehearing En Banc Jan. 7, 1974.

      Luke McKissack, Hollywood, Cal., Daniel A. Jones, in pro per, for defendant-appellant.
    V. DeVoe Heaton, U. S. Atty., Richard P. Crane, Jr., Asst. U. S. Atty., Las Vegas, Nev., for appellee.
    Before CHOY and GOODWIN, Circuit Judges, and EAST, District Judge.

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

   CHOY, Circuit Judge:

Jones appeals his conviction of six violations . of the National Firearms Act, 26 U.S.C. § 5861(d), (e), and (i) (1970) for possession of two unregistered silencers, unlawful transfer of the silencers and possession of silencers not identified by serial numbers. We affirm.

Early in January of 1972, John Ray, a friend of appellant, and, as it subsequently appeared at trial, a government informant, asked appellant to obtain a silencer for a .22 caliber handgun. On January 21, Ray took Beckwith, a special agent, to appellant’s home and introduced him as the one desiring to purchase the silencer. At this meeting, Jones sold a .22 caliber pistol fitted with a silencer to Beckwith, who also requested that Jones procure a silencer for a larger weapon. Jones said he would try to get such a device. This request was repeated several times over the next few, months.

Beckwith, accompanied by Ray, reiterated the request at a May 27 meeting with appellant and gave Jones a .45 caliber pistol to be fitted for the silencer. Over the next two months, Beckwith continued to press Jones to produce the .45 caliber silencer, but Jones repeatedly claimed difficulty obtaining it. Finally, on July 28 Beckwith again met with Jones. Declaring his inability to procure the .45 caliber silencer, Jones sold him a .22 caliber model for $250. At that meeting Jones, in response to a request by Beckwith, also stated he would attempt to arrange for the purchase of ten additional silencers. Further, Jones discussed the possibility of obtaining machine guns and explosives from Beckwith for the Irish Republican Army. The appellant, however, did not pursue either of these suggestions.

Jones assigns five grounds for reversal on appeal.

Entrapment

Jones argues that there was entrapment as a matter of law in the commission of these crimes. His claim is that he was induced to commit these crimes solely by reason of his friendship with Ray and only reluctantly procured the silencers, after repeated urgings by Beckwith and Ray, as a favor to Ray.

Entrapment “is a relatively limited defense.” United States v. Russel, 411 U.S. 423, 435, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). “It is only when the government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.” United States v. Russel, supra at 236. There are essentially two inquiries necessary to determine if there has been entrapment: First, entrapment will not be found where the defendant had a predisposition to commit the crime. See Sherman v. United States, 356 U.S. 369, 372-373, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 451, 53 S.Ct. 210, 77 L.Ed. 413 (1932); United States v. Griffin, 434 F.2d 978, 981 (9th Cir. 1971), cert, denied, sub nom., 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971). Second, there must have been some form of inducement sufficient to overcome even an innocent predisposition; the provision alone of facilities to commit the crime does not constitute entrapment. See Sherman v. United States, supra, 356 U.S. at 372-373, 78 S.Ct. 819; Sorrells v. United States, supra, 287 U.S. at 441-442, 53 S.Ct. 210; United States v. Ewbank, 483 F.2d 1149 (9th Cir., 1973).

In this case the government has clearly met its burden of disproving entrapment. That appellant had the predisposition to illegally procure and sell the silencers is shown by a number of facts. Jones readily procured the first silencer in January, and it took but little persuasion for him to sell the agent the second silencer in July. Before July 28th he, by his own admission, attempted to obtain a .45 caliber silencer. Moreover, on July 28th he said he would attempt to procure ten additional silencers. At one meeting with Beckwith, appellant stated that he dealt with a supplier of silencers who came through Las Vegas approximately once a month. Jones also discussed his desire to obtain from Beckwith a supply of machine guns and explosives for the Irish Republican Army. Finally, Jones testified he was not shocked, only a bit surprised, at Ray’s requests. In fact, Jones admitted he never did anything to discourage these transactions. Surely, there was ample evidence to enable a jury to find that appellant had the predisposition to commit these crimes.

Nor is there any lack of evidence upon which the jury could have found that the inducements of the government agents were not sufficiently coercive to constitute entrapment. Friendship is not, by itself, a sufficient inducement to constitute entrapment as a matter of law. United States v. Quevedo, 399 F.2d 307 (9th Cir. 1968). This case simply falls far short of the sort of conduct condemned as entrapment in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) and Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932).

Hearsay

Appellant contends that a statement made at trial by Beckwith was inadmissible hearsay. In response to a question asked by the trial judge, Beck-with said that “it was common knowledge that if you wanted a weapon, you would contact Dan Jones.” We find it unnecessary to decide if it was error to admit this statement, for we find that, in any case, its admission was harmless error. Only entrapment was at issue at trial and on that issue the admitted statement would only have been cumulative evidence of the predisposition of the defendant to commit the crime. There is overwhelming evidence to negate the defense of entrapment. There is thus no “reasonable possibility that the [arguably] improperly admitted testimony contributed to the conviction. . . .” Olivas v. Arizona ex rel. Eyman, 447 F. 2d 974, 975 (9th Cir. 1971).

Refusal of Subpoena

The trial court refused to issue a subpoena for the appearance of Ray at the trial. That subpoena was not requésted until the second and final day of the trial. The appellant avers that the request was not made until then because it was not earlier known that Ray was a government informant. However, appellant’s counsel interviewed Ray prior to the trial; he was told that Ray was the cause of Jones’ difficulties but decided that Ray’s testimony was not desired. Further, the fact that Ray was an informant was elicited in testimony on the first day of trial. As the trial judge noted, ff appellant’s counsel had then requested a subpoena, Ray probably could have been summoned without delaying the trial. A trial court need not order a subpoena of a witness where there is inexcusable delay in the request for the order. See United States v. Grooms, 454 F.2d 1308, 1311 (7th Cir. 1972), cert, denied, 409 U.S. 858, 93 S.Ct. 141, 34 L. Ed.2d 103 (1973); cf. United States v. Bottom, 469 F.2d 95 (9th Cir. 1972).

Multiple Counts

Appellant maintains it was error to try him on more than a single count for each of the two illegal transactions. He bases his argument on United States v. Clements, 471 F.2d 1253 (9th Cir. 1972). There, the defendant was similarly charged with separate offenses under the National Firearms Act, although they arose from a single factual situation. He was sentenced to consecutive sentences on each of the counts. Based on statutory interpretation, the court found only that the imposition of cumulative sentences was not authorized by the statute.

Clements is clearly distinguishable from this case, for it proscribes only cumulative punishment for offenses arising under the National Firearms Act, not conviction on multiple counts. Indeed the court in Clements appeared to recognize this distinction. See United States v. Clements, 471 F.2d at 1254. Congress has the power to establish that a single act constitutes more than one offense, at least as long as each offense requires proof of a fact the other does not. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The National Firearms Act sets forth a series of offenses, many of which can obviously arise from a single act. The absence of any indication in the statute or legislative history that prosecutions have to be confined to a single offense makes it quite evident that Congress intended to allow the government broad latitude in prosecuting firearms crimes. The policy was not to force the government to elect a single offense to prosecute. Therefore, Jones was properly tried and convicted on multiple counts. Cf. United States v. Stella, 448 F.2d 522 (9th Cir. 1971); United States v. Brown, 482 F. 2d 1359 (9th Cir. 1973).

Sentencing Information

Jones claims it was a denial of procedural due process not to reveal certain information upon which sentencing was based. Apparently, the trial judge had received information, not embodied in a formal presentence report, which he may have considered in meting out a sentence. “The rule in the federal courts is that the right to examine a presentence report is not one of constitutional magnitude and that the trial judge, in his discretion, may deny an accused an opportunity to inspect the report.” Fernandez v. Meier, 432 F.2d 426, 427 (9th Cir. 1970). The trial judge has broad discretion as to what type of information to utilize in sentencing, see Saros v. Richardson, 435 F.2d 821 (9th Cir. 1971), and it is by no means improper to use information not in the presentence report. United States v. Dockery, 145 U.S.App.D.C. 9, 447 F.2d 1178, 1183, cert, denied, 404 U.S. 950, 92 S.Ct. 299, 30 L.Ed.2d 266 (1971). Given this breadth of discretion and the fact it is not violative of due process not to reveal a formal report, it follows that it was within the discretion of the trial judge to decline to reveal the informally gathered information to appellant.

Affirmed.

      . Jones was not assigned consecutive sentences for offenses arising out of the same factual situation. The court merged for sentencing purposes the three counts arising from each transaction, so that punishment for the component offenses within each of the two transactions ran concurrently, but the two transactions themselves resulted in consecutive sentences of five years each. So long as sentencing is done in this manner, there is no violation of the Clements doctrine.


author: CLARK, Circuit Judge:

text:
    Vivian CALHOUN et al., Plaintiffs-Appellants, v. Ed S. COOK et al., Defendants-Appellees.
    No. 73-2020.
    United States Court of Appeals, Fifth Circuit.
    Aug. 21, 1973.

      Warren C. Fortson, Prentiss Q. Yancey, Jr., Thomas H. Ries, Benjamin W. Spaulding, Atlanta, Ga., for defendants-appellees.
    Elizabeth R. Rindskopf, Howard Moore, Jr., Atlanta, Ga., Jack Green-berg, Norman J. Chachkin, James M. Nabrit, III, New York City, for Abernathy and others.
    Nathaniel R. Jones, New York City, Bobby L. Hill, Atlanta, Ga., John H. Ruffin, Jr., Augusta, Ga., Samuel W. Tucker, Henry L. Marsh, III, Richmond, Va., John L. Kennedy, Atlanta, Ga., for Birt and others.
    Margie Pitts Hames, Atlanta, Ga., for Armour and others.
    Theo. W. Mitchell, Greenville, S. C., Charles S. Conley, Montgomery, Ala., Ernest L. Jones, New Orleans, La., for Congress of Racial Equality.
    Before WISDOM, THORNBERRY and CLARK, Circuit Judges.
   CLARK, Circuit Judge:

Pursuant to this-court’s mandate of November 24, 1972, (469 F.2d 1067) the district court, 362 F.Supp. 1249, approved a plan for the operation of the Atlanta Public School System. The approval was granted under the provisions of Fed.R.Civ.P. 23(e) as a class action compromise order. The instant appeal asserts the following errors by the court below: (1) consideration of the plan as a compromise action; (2) the procedures followed and actions taken in denying leave to intervene to three separately represented groups of Atlanta school children and the National Association for the Advancement of Colored People; (3) the procedure followed in considering the plan ordered to be implemented and in the adoption of this plan; and (4) the modification of the plan to require that all future disputes be presented to the Biracial Committee prior to presentation to the court.

This court is unable to reach the merits of this cause for lack of a fully developed district court record. The cause therefore must be remanded with directions to provide the parties an adequate opportunity for discovery and hearings at which the presentation of testimony and the right of cross-examination can be afforded. However, all children, parents, teachers and administrators in the system are faced with the opening of the 1973-74 school term on August 27, 1973. In order to maximize the educational opportunities that the system must afford to all children enrolled in the Atlanta public schools, the plan for the operation of said schools as approved in the order of the district court entered April 4, 1973, shall remain in effect pending completion by the district court of full compliance with our mandate of today.

COMPROMISE

Since the prior appeal of this case it has become obvious that the pursuit of an agreed settlement of this class action has failed. As the district court poignantly observed, the moments of truth for this case seem to have slipped away. We are now satisfiéd they are irretrievable. It would serve no worthwhile purpose to pursue the various reasons why or to attempt to fix particular fault upon any of the parties or the court below for the collapse of efforts to conclude this protracted and progressively perplexing case on an agreed basis under Rule 23(e). Suffice it to say that after months of intense and sincere effort by many elements of this community, the product of such labors continues to provoke widespread and genuine controversy. In this state of affairs no plan can be approved as a valid composition of the differences being litigated.

Even if this were not a class action suit, where material facts concerning the existence of an agreement to settle a judicial contest are in dispute, the entry of an order enforcing an alleged settlement agreement without a plenary hearing is improper. Massachusetts Insurance Company v. Forman, 469 F.2d 259 (5th Cir. 1972). In the present case no evidentiary hearing was ever conducted to determine that a viable compromise embodying a constitutional plan was reached. At least some of the attorneys representing the original plaintiffs assert no such compromise was made. The attempted intervenors sought to demonstrate that still other parties whom they assert are class members would object. In these circumstances the advisability of approval and the viability of the plan submitted could not properly be adjudicated on the basis of Rule 23(e).

INTERVENTION

Three groups of students in this school system that differ from the original named plaintiffs together with a national civil rights organization sought leave to intervene. These petitions were denied on the ground that the original plaintiff class could fairly and adequately represent the views sought to be posed by the would-be intervenors. The petition of the group of students represented by the Congress of Racial Equality was also denied on the ground that the relief sought by that group would be unconstitutional, i. e., it would recreate a dual school system. These intervenors sought and were denied the right to pursue discovery or present evidence in support of their intervention rights.

Two decisions handed down by this court subsequent to the entry of the decree now on appeal control the intervention issue. In Hinds v. Rapides Parish School Board, 479 F.2d 762 [5 Cir. 1973] we held that the proper course for groups seeking to question the implementation of desegregation orders in school cases is to file a petition for intervention that would bring to the attention of the district court “the precise issues which the new group sought to represent and the ways in which the goal of a unitary system had allegedly been frustrated." We continued by defining the court’s role after such a precise petition had been filed thus:

The district court could then determine whether these matters had been previously raised and resolved and/or whether the issues sought to be presented by the new group were currently known to the court and parties in the initial suit. If the court determined that the issues these new plaintiffs sought to present had been previously determined or if it found that the parties in the original action were aware of these issues and completely competent to represent the interests of the new group, it could deny intervention. If the court felt that the new group had a significant claim which it could best represent, intervention would be allowed.

In Lee v. Macon County Board of Education, 482 F.2d 1253 (5 Cir. 1973) we emphasized the absolute necessity that the petition for intervention contain such- a clear delineation of the contentions of the intervenors as would remove all doubt that the court would be able to determine the validity of the attempted intervention, or, if intervention were allowed, the merits of the claim asserted.

Preciseness in reframing the issues presented by all potential intervenors in the case at bar is vital since a portion of the present intervention claims relate to charges that the compromise settlement was the product of collusion. In view of our ruling that compromise is not a proper basis for viewing the validity of this plan, no such reasons for the allowance of intervention would any longer be pertinent.

The district court’s action in refusing leave to intervene to the Congress of Racial Equality at the pleading stage on the grounds that its intervention proposal would be unconstitutional is improper for two reasons. First, further proceedings may have demonstrated that CORE would be entitled to some but not all of the relief it sought in a manner that would have kept its position from being patently unconstitutional. See Thompson v. Allstate Insurance Company, 476 F.2d 746 (5th Cir. 1973). Second, in any case where a ground for decision exists which does not involve constitutionality, that ground and not a constitutional issue- should be the basis for adjudication. See Benton-Volvo-Metairie, Inc. v. Volvo Southwest, Inc., 479 F.2d 135 (5th Cir. 1973) [No. 72-2508, June 7, 1973].

Under Fed.R.Civ.P. 24(a) school children members of the plaintiff class would have a right to intervene if their interests were not adequately represented by existing parties. Even if this were not so, the court could permit intervention under Rule 24(b) if such intervention would not unduly delay or prejudice adjudication of the rights of the original parties. In any event for this court to properly review the intervention rulings of the court below, we must have before us findings based upon record evidence, which are lacking here. Without any intimation as to the merits of the decision to be made on any future petitions for leave to intervene, we vacate the district court’s rulings denying leave to intervene in this case to the various parties who sought this right and remand the ease for further proceedings relative to such interventions not inconsistent herewith.

ADOPTION OF THE PLAN

On March 8, 1973, the district court heard presentations by counsel of record relating to the validity of the asserted compromise that produced the plan being tendered for adoption. Then, after published notice, on March 29, 1973 the court afforded an opportunity for “all interested parties” to appear and make unsworn comments on the plan’s operation. Attempts to obtain discovery and to introduce evidence at the March 29 proceeding were denied.

With no lack of sensitivity to the burdens imposed upon judges who are attempting to expediently conduct the business of a heavily burdened district court, such procedures cannot form the basis for adjudication of the merits of the complex issues in this litigation. A reasonable opportunity for discovery must be afforded. In addition, minimum procedural due process requires adequate notice of a hearing at which an opportunity will be afforded the parties to present sworn testimony and to cross-examine witnesses who sponsor opposing views.

It is unnecessary for the court now to reach or rule upon the validity of the provision of the court’s order that future disputes or disagreements concerning the operation of a plan for the Atlanta School System be first presented to the court’s Biracial Committee. For purposes of the present hearings on intervention and the adoption of a plan, no submission of evidence to a Biracial Committee would be proper. However, in. connection with the operations of such a committee in the future, we would call attention of the court to footnote 2 of our decision in Hines v. Rap-ides Parish School Board, supra.

CONCLUSION

Any party or parties who may wish to seek leave to intervene in this action upon remand shall be required to petition for intervention with the requisite preciseness defined in Hines v. Rapides Parish School Board, supra and Lee v. Macon County Board of Education, supra. Should any such precise petitions be presented, the court shall afford the opportunity for hearings and shall make findings based upon record evidence adduced at such hearings in accordance with Fed.R.Civ.P. 24. Time being of the essence in this action, no petitions for intervention shall be filed later than 30 days from the date this court’s mandate becomes final and any hearings thereon must be concluded within 30 days thereafter. Promptly after the district court determines that the class or classes of plaintiffs who are entitled to maintain this suit under Fed.R.Civ.P. 23 are adequately represented, it shall schedule times for the completion of prehearing discovery and for hearings on the merits of a plan covering student assignments in the Atlanta Public School System in accordance with the prior decisions of this court reported at 451 F.2d 583 and 469 F.2d 1067. Such hearings shall be conducted and concluded in sufficient time to enable the district court to enter a final order in this cause prior to May 1, 1974.

Should the presently pending three-judge cause of Armour, et al v. Nix, et al, (No. 16708, N.D.Ga.) be dismissed or consolidated with this cause, the district court shall separately and subsequently consider and make supplementary findings of fact and conclusions of law upon metropolitan school district consolidation as directed by the second paragraph of our prior decision reported at 451 F.2d 583 and in light of any intervening decisions by the Supreme Court of the United States.

Remanded with directions.


author: BIGGS, Circuit Judge.

text:
    UNITED STATES of America ex rel. Robert B. J. MULVANEY v. John RUSH, Warden of the Essex County Penitentiary, Appellant.
    No. 73-1088.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) Sept. 14, 1973.
    Decided Nov. 5, 1973.
    As Amended Dec. 6, 1973.

      R. Benjamin Cohen, Asst. Prosecutor, Newark, N. J., for appellant.
    Matthew P. Boylan, Lowenstein, San-dler, Brochin, Kohl & Fisher, Newark, N. J., for appellee.
    Before BIGGS, ADAMS and RO-SENN, Circuit Judges.
   OPINION OF THE COURT

BIGGS, Circuit Judge.

This ease presents an insurmountable puzzle to this court because of gross deficiencies in the record. We might be justified, we believe, in dismissing Rush’s appeal for want of a proper record but we are not certain on which party the default falls. We will refrain from dismissing the appeal because of our view that the record can be repaired to a point where the district court and this court can adjudicate justly the issues presented and because comity should be preserved insofar as possible between the New Jersey State Courts and the Courts of the United States. Cf. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); United States ex rel. Rogers v. Richmond, 252 F.2d 807 (3 Cir.), cert, denied, 357 U.S. 220, 78 S.Ct. 1365, 2 L. Ed.2d 1361 (1958). Some light is thrown on the instant case by the decisions of the New Jersey Courts as follows : State v. Mulvaney, 117 N.J.Super. 315, 284 A.2d 549 (App.Div.1971), certif. den., 60 N.J. 139, 286 A.2d 512, cert, denied, 407 U.S. 925, 92 S.Ct. 2459, 32 L.Ed.2d 812 (1972).

Mulvaney was tried on two indictments, No. 2314-68 and No. 1196-69. In the former indictment No. 2314-68, Mulvaney was charged with six counts of substantive offenses and conspiracies to obtain money under false pretenses from the Maryland Casualty Company in the period from September 15, 1966 to February 16, 1968, and in this indictment there were named as alleged co-conspirators Perwin, Córtese and others. Mulvaney pleaded not guilty and was eventually acquitted on all counts.

In the latter indictment, No. 1196-69, Mulvaney was again charged with conspiring to obtain money under false pretences from the same corporation in the, period from August 1, 1967 to February 1, 1968. Mulvaney was convicted after a jury trial. Direct appeal having resulted in affirmance, State v. Mulva-ney, su/pra, Mulvaney brought action for habeas corpus alleging, inter alia, that trial on the second indictment subjected him to double jeopardy.

In his Report and Recommendation on the petition for habeas corpus Magistrate John W. Devine stated, under the heading “I “Double Jeopardy”: “Petitioner and Perwin were first charged in Essex County Indictment 2314-68 with conspiring to obtain money under false pretenses from Maryland, Count II, and to cheat and defraud that company, Counts IV and VI, N.J.S.A. 2A:98-1, and in three Counts, I, III and V, with related substantive offenses. N.J.S.A. 2A: 111-1. The three conspiracies were alleged to have existed at various overlapping times from September 15, 1966 to February 16, 1968. Petitioner and his co-defendants were acquitted of those charges on January 28,1970.

“Petitioner, Perwin, Yormark and Brizard were all charged in Essex County Indictment 1196-69, as were Morelli and Albrizio, with conspiring to obtain money under false pretenses from Maryland from August 1, 1967 to February 1, 1968, a period encompassed by that aggregated in Indictment 2314-68. Trial began on September 14, 1970. On January 18, 1971, the jury returned a verdict of guilty as to all defendants.

“Petitioner contends that trial on Indictment 1196-69 subjected him to double jeopardy in violation of the Fifth Amendment because the conspiratorial period alleged was chronologically within those set out in Indictment 2314-68 on which he had been acquitted and because on the proofs presented there was only one conspiracy. Petitioner further complains that testimony as to the allegedly false claims involved in Indictment 2314-68 was introduced at his second trial despite his prior acquittal. This argument, collateral estoppel, is reviewed below. We now consider the double jeopardy claim.”

The learned Magistrate deemed that there was but one conspiracy and therefore Mulvaney was put in double jeopardy. Judge Whipple reviewed the Magistrate’s report and affirmed it. Judge Whipple granted a writ of habeas corpus on the same grounds as advanced by Magistrate Devine. Neither the Magistrate nor Judge Whipple passed upon the issues of collateral estoppel or of jury tampering. In view of their decision, to decide these issues was unnecessary.

It is conceded by the parties that the transcripts of the trials at Indictments 1196-69 and 2314-68 were not before Magistrate Devine or Judge Whipple. Various attempts have been made to remedy this deficiency subsequent to Judge Whipple’s decision both by motion in the District Court and by an undated stipulation presented on April 10, 1973 to the Clerk of the United States District Court and apparently referring to the instant case because of its docket number, viz., “Docket No. 73-1088 (Circuit Court of Appeals).” This stipulation states: “It is hereby agreed to and stipulated between the parties that the record in this matter be supplemented for the purpose of appeal to include: The following portions of the petitioner’s trial in Essex County Court, Law Division, on Indictment No. 1196-69— Pages: * * The pages enumerated total 346 which were not before the district court and do not aid us. We believe that the trial transcripts consist of at least 10,000 pages and embrace trials not only of Mulváney but of others.

On the record before us and on the record which apparently was before the district court, neither the district court nor this court can adjudicate two issues presented by the petition for ha-beas corpus; i. e., whether Mulvaney was subjected to double jeopardy and whether or not there is collateral estoppel. We are aware of the provisions of Rule 10 (e) of the Rules of Appellate Procedure, permitting the supplementing of the record on appeal and we are aware of the contents of the letter written to our Clerk under date of September 17, 1973 by R. Benjamin Cohen, Esquire, Chief of the Appellate Division of the Office of the County Prosecutor of Essex County, in which Mr. Cohen states: “At the oral argument on this motion in the District Court, the Honorable Lawrence A. Whipple, U.S.D.J., suggested that the parties enter into and file a stipulation to supplement the record on appeal with such materials as both parties should agree upon. The stipulation contained in the appendix at pages 46A to 47A was subsequently entered into.” Rule 10(e) is apparently intended to “supplement” a record, not to supply in substance a large new record never before the District Court and never considered by it. We are not a fact-finding body. We are entitled to have the judgment of the district court both as to findings of fact and conclusions of law in a case such as that at bar.

The District Court, however, appears to have based its decision, at least in part, on evidence which was not placed before it by way of the state trial transcript, stipulation, or any other judicially cognizable source. Bare representations by counsel, not stipulated to, are not evidence. Bradshaw v. Alldredge, 432 F.2d 1248 (3 Cir. 1970); United States v. Bowles, 331 F.2d 742, 746 n. 11 (3 Cir. 1964). It was inappropriate to find error in a presumptively valid state court proceeding by this procedure.

The judgment will be reversed and the case remanded with directions to proceed in accordance with this opinion.

      . On the 25th of July, 1972 Judge Coolahan of the United States District Court for the District of New Jersey ordered the respondent “John Rush file an answer to said petition on or before September 1, 1972, accompanied by a certified copy of all process pleadings, transcripts and orders filed in the state proceedings or such of them as may be material to the question raised in the petition.”
      The following appears from the affidavit of Assistant Essex County Prosecutor R. Benjamin Cohen: “6. Due in part to the cumbersome size of the State trial transcripts in this matter and due in part to error, Appeal lant, John Rush, did not include said trial transcripts with the answer to the petition. It was assumed at that time that this Court would request said transcript or portions thereof if the Court felt that the issues raised in the petition were of any merit.”
      This is all that appears in respect to this matter in the entire record insofar as we can ascertain.
      The reference to an “answer” may or may not be correct, i. e., there may have been an answer filed or there may not have been but in any event it is not in the record in this court.

      . The Supreme Court of New Jersey granted certification only on the issue of the assessment of trial costs and on that issue it re- ' versed the trial court’s assessment of trial costs of $16,750.00. State v. Mulvaney, 61 N.J. 202, 293 A.2d 668 (1972).

      . The defendant Mulvaney has served the custodial portion of his sentence but the probationary period has been stayed pending this appeal.

      . This colloquy is not reproduced in the record.

      . The purpose of the rule is to permit correction or modification of the record transmitted to the Court of Appeals so that it adequately reflects what happened in the District Court. 9 J. Moore, Federal Practice ¶¶ 210.08 [1], 210.09, at 1638-49, 1654 (2d ed. 1973) ; see, e. g., United States ex rel. Kellogg v. McBee, 452 F.2d 134 (7 Cir. 1971) ; Gill v. Turner, 443 F.2d 1064 (10 Cir. 1971) ; United States ex rel. Bradshaw v. Alldredge, 432 F.2d 1248 (3 Cir. 1970).

      . In reply to a letter of our Clerk requesting information which need not be repeated here, a letter dated October 9, 1973 was received by the Clerk of this Court and is as follows:
      October 9, 1973
      Thomas F. Quinn, Clerk United States Court of Appeals For the Third Circuit 2046 U.S. Court House Ninth & Chestnut Streets Philadelphia, Pennsylvania 19107
      Be: U.S.A. ex rel. Mulvaney v. Bush No. 73-1088
      Dear Sir:
      This letter is written in response to your letter of October 4, 1973 in which several questions were posed. For your convenience I shall set forth your questions and answer each one individually.
      (1) Were the records, including the transcripts of the testimony of the trials of Dr. Mulvaney on Indictment Nos. 1196-69 and 2314-68 offered in evidence in the District Court in the instant case?
      (A) The transcripts of the testimony of the trials of Dr. Mulvaney were not offered in evidence in the District Court in the instant case. The “records” before the District Court are enumerated in footnote 3 to Magistrate Devine’s Beport and Becommen-dation.
      (2) If they were not so offered, why were they not so offered?
      (A) The transcripts of the two trials were not offered in evidence due to an oversight by the assistant prosecutor who was assigned to handle this matter at the District Court level.
      (3) If they were offered in evidence why were they not received in evidence and made a part of the record in the District Court in the instant case?
      (A) Not applicable.
      (4) In Judge Whipple’s memorandum opinion and order adopting the report of Magistrate John W. Devine, granting the writ of habeas corpus the following appears: “This Court has conducted an independent review, in compliance with Townsend v. Sain, 372 U.S. 293 [83 S.Ct. 745, 9 L.Ed.2d 770] (1963), and 28 U.S.C. § 636(b)(3) of the petition for the writ, the answer of the respondent (see item (7), infra), the trial transcript (sic), the indictment (sic) and the report and recommendation of the United States Magistrate which is filed with this Order; and upon consideration of the foregoing,
      “It is on this 27th day of November, 1972
      “ORDERED that the Report and Recommendation of the United States Magistrate be and hereby is adopted as the opinion of this Court; . . . . ” (Emphasis added).
      Were or were not the records and the transcripts of the testimony of the trial of Dr. Mulvaney on indictments 1196-69 and 2314-68 in the record before Judge Whipple as evidence in the instant case? Were either of them before Judge Whipple? Were both or either of them before Magistrate Devine?
      (A) The transcripts of the testimony of the trials of Dr. Mulvaney on Indictment 1196-69 and 2314-68 were not in the record before Judge Whipple as evidence in the instant case. These transcripts were not “before” either Judge Whipple or Magistrate Devine. The exhibits which were before Judge Whipple and Magistrate Devine are those set forth in footnote 3 to Magistrate Devine’s Report and Recommendation and included, among other things, the brief in support of the petition, the brief in opposition to the petition, and the relevant indictments.
      (5) If they were before Judge Whipple, what is the purpose of the motion “received” in the District Court on September 19, 1973 in which “Appellant (Rush) prays that the record be supplemented to include:
      “(a) the transcript'of the petitioner’s trial in Essex County Court, Law Division on Indictment No. 1196-69; (and)
      “(b) the transcript of the petitioner’s trial in Essex County Court, Law Division on Indictment No. 2314-68.”? It is noted that Judge Whipple’s order granting habeas corpus was filed November 29, 1972, more than a year prior to the filing of the motion referred to.
      (A) Since the transcripts of the trials were not before Judge Whipple, this question is not applicable. It should be noted, however, that the notice of motion for leave to supplement the record on appeal was filed on January 10, 1973. On February 27, 1973 a hearing was had on this motion before Judge Whipple and at that time he suggested the stipulation, which stipulation was filed on April 10, 1973.
      (6) On page 23a of the Appendix, in the report of Magistrate Devine, appears the following: “Indeed, on the record at hand, which does not include the trial transcript of more than 10,000 pages, there is no indication that petitioner and/or Perwin ever reached any accord with Yormark and/or Perwin . . . . ” (Emphasis added). Is the foregoing respecting the trial transcript a correct statement?
      (A) The foregoing respecting the trial transcript is a correct statement in that the record before. Magistrate Devine did not include the trial transcript of more than 10,000 pages.
      (7) Judge Whipple’s order makes reference that he acted upon “the answer of respondent”. See item (4), supra. We find no answer in the record. Was an answer ever filed? If there was an answer, a copy should be dispatched to the Clerk of the District Court and a copy to the Clerk of this Court.
      (A) No pleading entitled “Answer” was filed in the District Court. However, Appellant Rush did serve and submit a brief in opposition to the petition for habeas corpus wherein he denied the allegations set forth in the petition. See footnote 3 to Magistrate Devine’s report and recommendation. A copy of this brief is enclosed herewith and a copy has been sent to the Clerk of the District Court.
      Respectfully yours,
      Joseph P. Lordi Essex County Prosecutor /s/ R. Benjamin Cohen R. Benjamin Cohen Chief, Appellate Section
      rbe/rd
      Enclosure
      cc Matthew P. Boylan, Esq.
      The appellant has sent to this court an extraordinary number of documents. There is, for example, a statement of procedural history, which may be correct in all respects and runs to some 111 pages including testimony as to alleged jury tampering, rejected by the Superior Court of New Jersey in State v. Yormark, supra. There are also a number of exhibits which include Yormark’s brief in the Superior Court on the jury-tampering issue, marked Exhibit P-5 at Indictment 1261-72, the opinion of the trial court on the jury-tampering issue, marked P-6 with the same indictment number, a supplemental brief by the then Assistant Prosecutor in opposition to a motion for a new trial in the New Jersey State Court which consists of some 60 pages, an exhibit marked R-3, which is the indictment at No. 1261-72, which does not name Mulvaney as a defendant, and so forth.
      Perhaps the appellant is of the view that statements in briefs are evidence and the record may be supplemented in this way. As stated above, statement by counsel, unless stipulated to, are not evidence and cannot be considered as such. See, Bradshaw v. Alldredge, 432 F.2d 1248 (3 Cir. 1970) ; United States v. Bowles, 331 F,2d 742, 746, n. 11 (3 Cir. 1964).