author: CASTLE, Senior Circuit Judge. PELL, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Abraham Frank ZIMMERMAN and Sylvia Zimmerman, Defendants-Appellants.
    No. 72-1148.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 26, 1973.
    Decided April 30, 1973.
    Anna R. Lavin, Joseph M. Solon, Chicago, III., for defendants-appellants.
    Scott P. Crampton, Asst. Atty. Gen., Murray S. Horwitz, Atty., Tax Division, Department of Justice, Washington, D. C., James R. Thompson, U. S. Atty., William T. Huyck, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
    Before CASTLE, Senior Circuit Judge, and KILEY and PELL, Circuit Judges.
   CASTLE, Senior Circuit Judge.

■On October 29, 1971, the district court entered its decision reducing to judgment certain assessments for unpaid income taxes against Abraham Zimmerman for the' years 1923 to 1931, and holding Abraham and Sylvia Zimmerman jointly and severally liable for income tax liabilities for the years 1959 through 1962. On this appeal Sylvia Zimmerman seeks relief from the joint liability imposed upon her for 1959-1962 taxes because of the amendment of the internal revenue statute upon which her liability was originally based.

Apparently the Zimmermans filed suits in the Tax Court of the United States during 1966 for a determination of their tax liabilities. (Cases Nos. 1374-66 and 1375-66.) While these suits were still pending, the United States filed an action in district court pursuant to 26 U.S.C. § 7402(a) (1964) which sought to reduce certain tax assessments against the Zimmermans to judgment. Count I of the government’s complaint alleged deficiencies for the years 1923 through 1931, and Count II alleged unpaid liabilities for the years 1959 and 1961. The Zimmermans filed their answer denying the allegations of these two counts, and they asserted the statute of limitations and the alleged failure of Counts I and II to state a cause of action. The district court litigation then became drawn out due to a series of postponed pretrial meetings, continuances, and motions for partial summary judgment. In the meantime, the Tax Court rendered a decision in cases Nos. 1374-66 and 1375-66 on July 8, 1970 “pursuant to agreement of the parties.” The decision in 1374-66 determined that the deficiencies in the income tax payments of Abraham Zimmerman for 1959, 1960, 1961 and 1962 amounted to $26,441.98, $54,096.48, $62,216.32 and $5,073.80 respectively, and that he also owed the government various additional sums for the years in question pursuant to 26 U.S.C. § 6653(b). The decision in 1375-66 found Sylvia Zimmerman liable for the same deficiencies and penalties owed by her husband for the years 1959-1962.

On August 12, 1970 the government moved to amend its complaint in the district court action “to permit all issues between the interested parties to be litigated in one action thus saving unnecces-sary litigation.” Its motion granted, the government struck Count II and alleged that the July 8 Tax Court decision had determined the assessments against the Zimmermans for 1959-62 and that the Zimmermans had refused to pay these assessments. The prayer of relief for the amended Count II sought an adjudication that:

. the defendants, Abraham F. and Sylvia Zimmerman, are jointly and severally liable and indebted to the plaintiff, United States of America, for unpaid taxes, penalties and interest assessed against them in the amount of $304,233.56, plus interest according to law.

The Zimmermans then filed their answer to the amended Count II and admitted that they owed $304,233.56 to the government. Their answer also admitted “that the United States of America is entitled to the relief prayed under Count II of the Complaint.”

After a trial on only the first count of the complaint (the liability for taxes for 1923 to 1931), the district court adjudged that the government was entitled to the relief it asked for in both Count I and Count II. Regarding Count II of the complaint, the Trial Court found:

13. The taxpayers, Abraham F. Zimmerman and Sylvia Zimmerman, cannot relitigate the taxes assessed against them on July 13, 1970 for the years 1959, 1960, 1961, 1962. These liabilities are the result of decisions of the Tax Court of the United States, which are res judicata as to the question of the liability of the defendants. On this appeal Sylvia Zimmerman

asserts that her tax liability as determined by the Tax Court and confirmed in the district court was based on a statute which subsequently has been significantly modified. Prior to January 12, 1971, a husband and wife filing a joint return were automatically jointly and severally liable for income tax deficiencies and fraud penalties incurred even though the deficiencies and penalties were due to misstatements by one spouse and the other spouse was innocent. 26 U.S.C. §§ 6013 and 6653 (1964). Public Law 91-679 amended §§ 6013 and 6653 to allow an innocent spouse to escape joint liability under certain specified circumstances. These amended statutes became effective on January 12, 1971, six months after the Tax Court decision against Sylvia Zimmerman was rendered, and at least three months before the trial of the district court action. Appellant submits that the judgment of the district court on Count II should be reversed and remanded because of this intervening change of law between the dates of the Tax Court and district court decisions. She has also attacked the finding by the district court that the prior Tax Court decision is res judicata and prevents a relitigation of her tax liabilities for 1959 through 1962.

We find that the two arguments advanced by appellant are interrelated, for she cannot avail herself of the protection of the amended statutes if the 1970 Tax Court decision is res judicata as to her tax liability for 1959 through 1962. In enacting the amendments to §§ 6013 and 6653, Congress provided:

This bill, of course, does not open a year which has been closed by the statute of limitations, res judicata or otherwise.

S.Rep.No.91-1537, 91st Cong., 2d Sess. 4 (1970), U.S.Code Cong. & Admin.News, p. 6093. If the Tax Court decision is res judicata as to her tax liabilities, the amended statutes are inapplicable to her liability.

Appellant argues that the determination of her tax liability for 1959 through 1962 cannot be res judicata because the doctrine applies only to points or questions actually litigated and determined in a prior action. United States v. International Building Co., 345 U.S. 502, 504-505, 73 S.Ct. 807, 97 L.Ed. 1182 (1953). She extends this argument to contend that, since the amended statutes allowing an innocent spouse relief from the misstatements on a joint return did not exist at the time of the Tax Court decision against her, she should now be given an opportunity to litigate the rights made available to her by the amendments which she could not litigate in the prior action.

We believe her attempt to avoid the consequences of the doctrine of res judicata is unacceptable for two reasons. First, appellant has based her argument on the assumption that the amended statutes have given her a “right” to litigate which she did not possess prior to the amendments. Her assumption, of course, would be erroneous if Congress did not give her a “right” to seek a relitigation of tax liabilities which have already been conclusively determined. We conclude, for reasons set forth below, that no new litigable right was given to the appellant by the amendments which she can now assert. Secondly, her argument claims too much. Pushed to its limits, it would reduce the above-quoted language from the Senate Report to a nullity, for this argument would allow the reopening of any determination of tax liability, no matter whether a final determination of this liability had been reached or not. We believe that the correct interpretation of congressional intent — in line with the principle of statutory construction that congressional intent should not be read in a way that will reduce it to a nullity, First National Bank v. Walker Bank & Trust Co., 385 U.S. 252, 261, 87 S.Ct. 492, 17 L.Ed.2d 343 (1966) — is that the amendments to §§ 6013 and 6653 do not give any “rights” to taxpayers to relitigate their tax liabilities if these taxes have been determined through a conclusive final judgment rendered against the taxpayer. Thus, the key issue in light of this interpretation of congressional intent is whether the Tax Court decision rendered in 1970 was a conclusive determination of appellant’s tax liability.

Our interpretation of congressional intent is supported by case law. In United States v. Maxwell, 459 F.2d 22 (5th Cir. 1972), the government sued in district court to reduce assessments against a taxpayer set by a decision of the Tax Court to judgment. The taxpayer claimed in defense that the amendment to § 6013 relieved her from joint liability with her husband. The fifth circuit rejected this argument, finding that the decision of the Tax Court, which became final when the taxpayers failed to take an appeal, was res judicata of the wife’s tax liability and precluded relitigation of this liability. Similarly, in Sylk v. United States, 331 F.Supp. 661 (E.D.Pa.1971), the taxpayers sought to enjoin the government from exposing the wife’s property to sale on the theory that the amendment to § 6013 after the Tax Court decision setting her liability relieved her of liability. The court rejected this argument, finding that the Tax Court decision was res judicata. The court also found that res judicata was applicable despite the claim by the taxpayer that the amendment to the statute gave her rights which she did not have at the time of the Tax Court adjudication. The court noted that Congress could properly grant only partial retroactive relief, and that the taxpayer in effect did not possess any rights at the time of her appeal different from those which she had at the time of the Tax Court decision.

The appellant seeks to distinguish the present case from the two above-cited decisions on the ground that the district court in the present case assumed the position of an “appellate court” by accepting the government’s amendment to its complaint (which asserted the Tax Court judgments) before the expiration of the time to appeal from the Tax Court decision. We cannot accept the argument that the district court became an appellate court which assumed the power to review the correctness of the Tax Court decision, and that consequently the Tax Court decision was not res judicata. Congress has plainly provided that all appeals from Tax Court decisions are to be determined directly by the circuit courts of appeal. 26 U.S.C. § 7483 (1970). Clearly the district court did not have jurisdiction to pass upon the merits of the Tax Court decision. The record also indicates that appellant consented to entry of judgment against her by the Tax Court by signing a stipulation that the court could enter the decision against her. It has been repeatedly held that consent to entry of judgment against oneself waives one’s right to challenge the judgment through any sort of appeal. Thonen v. Jenkins, 455 F.2d 977 (4th Cir. 1972), Stanford v. Utley, 341 F.2d 265, 271 (8th Cir. 1965), Stewart v. Lincoln-Douglas Hotel Corp., 208 F.2d 379, 381 (7th Cir. 1953), 9 Moore’s Federal Practice 23.06 at 719 (2d Ed. 1972). Thus, the judgment of the Tax Court became final when appellant consented to the entry of judgment against her, and the district court could assume no appellate jurisdiction over this judgment.

The appellant also attempts to distinguish the Maxwell and Sylk decisions on the ground that both cases involved a “break” in time between the Tax Court decision and the pendency of the district court proceedings. She notes that no “break” was involved in the instant case because the district court action was commenced prior to the time the Tax Court rendered its decision, and because the government promptly amended its complaint to seek to reduce the assessments determined by the Tax Court to judgment. We fail to see the implications of this attempted distinction for avoiding the effect of res judicata.

The judgment of the district court is affirmed.

Affirmed.

PELL, Circuit Judge

(concurring).

While I am of the opinion that in all probability the majority opinion has reached a correct result on this appeal, I am troubled by certain aspects of the litigation below and the application of the principles of res judicata therein. I have phrased the matter in terms of “probability” because the matter of the nature of the litigation in the district court which has proved troublesome to me was not explored in the briefs or arguments of the parties. My own independent research merely confirms that the Internal Revenue Code possesses labyrinthine aspects into which one ventures with some uncertainty as to the correctness of his course.

The litigation between Sylvia Zimmerman and the Government apparently was proceeding in side-by-side eases in the Tax Court and the district court. When suit was originally filed in the district court the Government sought to recover in Count II a judgment for the years 1959 and 1961. I am unable to understand how these two years could properly have been the basis for the Government’s seeking a judgment in the district court when those two years plus 1960 and 1962 were in litigation in the Tax Court. 26 U.S.C. § 6213(a) would seem to state that no “proceeding in court” for a collection should be prosecuted “if a petition has been filed with the Tax Court, until the decision of the Tax Court has become final.” Although a decision was entered in the Tax Court on July 8, 1970, for the four years in question, the decision of the Tax Court under 26 U.S.C. § 7481 would not become final until the expiration of the time allowed for filing an appeal. Apparently the Government waited 30 days and, no notice of appeal having been filed, then filed its motion to amend the district court complaint “to permit all issues between the interested parties to be litigated in one action thus saving unnecessary litigation.” [Emphasis supplied.] In the amendment to the complaint accompanying the motion to amend, the Government prayed as follows:

“(a) That this Court adjudge and decree that the defendants, Abraham F. and Sylvia Zimmerman, are jointly and severally liable and indebted to the plaintiff, United States of America, for unpaid taxes, penalties and interest assessed against them in the amount of $304,233.56, plus interest according to law.”

The amount specified was that which was claimed to be due for the four years covered by Count II, and the amendment to the complaint concerned Count II only. All of the language in the Government’s motion and the amended complaint appears to be couched in terms of some sort of a new action in which the Government is seeking a judicial determination that a deficiency was owing by the Zimmermans for the four years in question.

Taking the Government’s allegations at face value, if there was new litigation it would appear to me that res judicata would not be applicable because a change of law had occurred. The general principle thus applicable is set forth in 50 C.J.S. Judgments § 650, at 95 (1947) as follows:

“In accordance with the general rule stated supra this section that the estoppel of a judgment extends only to the facts and conditions as they were at the time the judgment was rendered, it has been broadly held that res judicata is no defense where, between the time of the first judgment and the second, there has been an intervening decision or a change in the law creating an altered situation, as where the second suit seeks an adjudication of rights under a statute enacted subsequent to the determination of the first action.” [Footnotes omitted.]

It seems clear that the Zimmermans intended the decision of the Tax Court entered July 8, 1970, to be a final decision, although Sylvia Zimmerman was not aware of the “innocent spouse” statute at that time because it had not yet become law. The stipulation which she signed reads in part as follows:

“It is further stipulated that, effective upon the entry of this decision by the Court, petitioner waives the restrictions, if any, contained in the applicable Internal Revenue laws on the assessment and collection of the deficiencies, plus statutory interest.”

This stipulation would seem to be a waiver of her rights under 26 U.S.C. § 6213(d) to assert the restrictions provided for in 26 U.S.C. § 6213(a).

Nevertheless, if the amended complaint in the district court was in the nature of a second or new suit it would appear that she should be entitled, pursuant to the principle set forth herein-before, to assert the “innocent spouse” statute as being applicable to her without being barred by res judicata.

I have been unable to discern from the statutes the exact purpose of the proceedings in the district court since the Government already apparently had a final decision in the Tax Court. It would appear, however, taking the reference in 26 U.S.C. § 6213(a) to “proceeding in court for its collection” and noting the general pronouncements of district court jurisdiction in tax matters both in 26 U.S.C. § 7402, and 28 U.S.C. § 1340 and § 1345, that the litigation in the district court subsequent to the filing of the amendment to the complaint was in essence nothing more than an effort to enforce the collection of what was tantamount to a final judgment. To reach this result it is, of course, necessary to ignore the plain language of the prayer to the amendment to the complaint, but since the amount of the deficiency in taxes for the four years in question had already been determined with the decision having become final nothing more remained for the Government to do except to seek a district court judgment enforcing payment since the taxpayer had declined to pay voluntarily.

To the extent that it is arguable that there was new litigation here which would have permitted the assertion of the “innocent spouse” statute in the proceedings in the district court, it is to be noted that although the statute had become effective at the time the district court entered its judgment the statute was not asserted in the district court. In my opinion, the contention should not be permitted to be asserted for the first time on this appeal.

For the reasons hereinbefore set out, I concur in the result reached in the majority opinion of this court.

      . Despite the fact that both Abraham and Sylvia Zimmerman have appealed, it appears that the only real appellant here is Sylvia Zimmerman, for this appeal seeks only to reverse the judgment that she is jointly and severally liable for the tax deficiencies and penalties incurred by her husband. If Sylvia were to prevail here and ultimately to prove sufficient facts to enable her to escape liability under the amended versions of 26 U.S.C. §§ 6013 and 6653, Abraham Zimmerman would then be liable for the full amount of $304,233.56.

      . We recognize that this principle of law may exist as an alternative ground for our decision affirming the judgment of the district court. Since appellant filed an answer which admitted her liability under Count II and which Consented to entry of judgment against her for the amount requested by the government, she in effect waived all rights to appeal the decision on Count II.


source: Caselaw Access Project

author: EUGENE A. WRIGHT, Circuit Judge: DAVID W. WILLIAMS, District Judge,

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Einer KETOLA, Defendant-Appellant.
    No. 71-2285.
    United States Court of Appeals, Ninth Circuit.
    March 28, 1973.
    As Amended on Denial of Rehearing May 3, 1973.

      John J. Cleary (argued), Robert A. Weninger, Federal Defender, Warren R. Williamson, San Diego, Cal., for defendant-appellant.
    Catherine A. Chandler, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Donald F. Shanahan, Stephen G. Nelson, Asst. U. S., Attys., San Diego, Cal., for plaintiff-appellee.
    Before WRIGHT and GOODWIN, Circuit Judges, and WILLIAMS, District Judge.

       Of the Central District of California.

   EUGENE A. WRIGHT, Circuit Judge:

This appeal is again before us following a remand from the Supreme Court. We affirmed the conviction of appellant on January 25, 1972, 455 F.2d 83 (9th Cir. 1972). A writ of certiorari was sought and granted on the Solicitor General’s concession that Ketola should have a copy of portions of the transcript not previously made available to him. Ketola v. United States, 409 U.S. 815, 93 S.Ct. 139, 34 L.Ed.2d 72 (1972). The transcript has been filed pursuant to the mandate of the Supreme Court and the parties have submitted supplemental briefs which have been considered, the court having dispensed with further oral argument.

Of the three issues presented by appellant, two were disposed of in our prior opinion. The supplemental transcript made available to appellant was in no way relevant to those issues, and, although counsel for appellant has ably re-argued them, we have concluded that our prior disposition of them was correct. The evidence was sufficient to support the conspiracy conviction, and we employ the concurrent sentence doctrine and decline to rule on counts two through five.

The government’s case against appellant was based in the main on the testimony of two eodefendants, although the government also introduced evidence of appellant’s involvement six months earlier in the same type of activity, using a similar modus operandi, as the crime here charged. Appellant did not take the stand and offered no evidence to contradict that of the government.

We have said that a conviction in a federal court may be based on the uncorroborated testimony of an accomplice, if the testimony is not “incredible or unsubstantial on its face.” Darden v. United States, 405 F.2d 1054, 1056 (9th Cir. 1969).

We have also said in DeCarlo v. United States, 422 F.2d 237, 241 (9th Cir. 1970) that:

“Nor was the court required, in the absence of a special request, to instruct the jury as to how to view such [accomplice] testimony. .
“There was considerable evidence reflecting upon the motives and credibility of the [accomplices], and counsel attacked their credibility in argument. We find no plain error.”

Appellant relies on language from United States v. Marsh, 451 F.2d 219, 221 (9th Cir. 1971):

“A cautionary instruction must be given if requested. United States v. Davis, 439 F.2d 1105, 1106-1107 (9th Cir. 1971). And failure to give such an instruction may be plain error if the need for the instruction is sufficiently clear (United States v. Griffin, 382 F.2d 823, 829 (6th Cir. 1967), but this is not such a case.”

We have examined the record and the supplemental transcript in an effort to determine if the need for such an instruction was clear. It was not. At the start of the trial, the trial judge gave some general instructions and discussed with the jury the matter of determining credibility. He appealed to the common sense of the jurors, mentioned possible bias and prejudice of witnesses and said that the jurors could disregard the entire testimony of a witness found not to be telling the truth.

In his closing argument to the jury, defense counsel focused on the testimony of the accomplices. He asked the jurors whether they could rely on what either accomplice had to say. He asked them to scrutinize the testimony of one accomplice, Morisch, in particular. Mo-risch had testified that he had had 20 or 25 beers during the three or four hours preceding the agreement with appellant. Counsel urged that there was a general unreliability about the kind of testimony coming from such a person. Counsel further urged that because appellant had previously been convicted of a similar offense, it was logical that Morisch would try to implicate him, to try to minimize his own involvement and to shift the responsibility for the crime to another person.

The court’s instructions to the jury included the following language:

“As you judge the credibility of witnesses and what weight is to be given to their testimony, you must consider such things as the manner in which they testify, the character of their testimony, evidence to the contrary of what they say. You should consider a witness’ intelligence, his motive, state of mind, his demeanor — all of these things and anything else which comes to your mind as a reasonable way of ascertaining where the truth is.”

We conclude that the jury was properly and adequately instructed. No cautionary instruction was requested by defense counsel and no exception taken to the instructions as given. It was not plain error for the trial judge to fail to give, sua sponte, the admonition now suggested.

Affirmed.

DAVID W. WILLIAMS, District Judge,

dissents in part for the reasons stated in his dissent to the panel’s earlier opinion, United States v. Ketola, 455 F.2d 83, 85 (9th Cir. 1972).


author: McCREE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Leroy EDDINGS, Defendant-Appellant.
    No. 72-2162.
    United States Court of Appeals, Sixth Circuit.
    Argued April 12, 1973.
    Decided May 10, 1973.
    Pierce Winningham, Jr., Jackson,, Tenn., (Court appointed), for defendant-appellant.
    Callis L. Childs, Asst. U. S. Atty., Memphis, Tenn., for plaintiff-appellee; Thomas F. Turley, Jr., U. S. Atty., Memphis, Tenn., on brief.
    Before PECK, McCREE and KENT, Circuit Judges.
   McCREE, Circuit Judge.

Appellant was convicted by a jury of two counts of possession and transportation of non-tax-paid whiskey, in violation of 26 U.S.C. § 5604(a)(1). On appeal, he contends that he was entrapped as a matter of law; that he was denied the opportunity to present an effective defense by the failure of the Government to disclose to him, both before and during trial, the name of an informer who allegedly sold him the whiskey; and that the court erred in its charge to the jury and in its refusal of his proffered special instructions.

The Government’s first witness at trial was Robert H. Golson, Special Agent of the Alcohol, Tobacco and Firearms Division of the Treasury Department. He testified on direct examination that early in the afternoon of May 22, 1972, he received information from a confidential informer who had (according to Golson) proved reliable in the past that appellant would pick up 50 gallons of liquor on Law Road near Interstate 40, about twelve to fifteen miles east of Jackson, Tennessee. Golson contacted agents Hopkins and Braxton, and the three agents, along with agent Peach and Peach’s brother, set up a surveillance that night in the area described by the informer. Agent Golson, on foot, heard a car coming down a side road in the area and radioed agent Peach, in a truck, to follow it. Peach followed the car for about a mile but was then told by Golson to come back because he had heard a car being loaded in the woods nearby. Golson then saw a car come down a side road and onto Law Road, and then travel with its lights off about 100 yards. Golson was then picked up by agent Braxton and the agents began to follow the second car toward the highway. As they came up behind the car, Golson recognized appellant, whom he had arrested before. The cars of agents Braxton and Hopkins followed appellant onto the highway, and the truck of agent Peach succeeded in getting ahead of appellant, and the caravan then proceeded a few miles until the agents decided to make the arrest. The agents stopped the car in which appellant was riding, and arrested appellant and three others — appellant’s codefendant Edward Smith and two women. In response to a question by Golson, appellant stated that the liquor was in the trunk. An examination of the trunk revealed 50 gallons of non-tax-paid whiskey. Golson testified that he did not know who had sold the liquor to appellant.

On cross-examination, Golson testified that he knew nothing of any telephone call to appellant on May 22, and defense counsel then asked him where he had obtained his information about the liquor sale. At this point the Government objected to revealing the name of its informer, and the objection was sustained. Golson thereafter testified that the informer was paid on a contingent basis —the larger the “catch,” the larger the fee. The informer did not, Golson stated, indicate to Golson how he had secured his information about appellant’s planned purchase of whiskey that night, and did not, to Golson’s knowledge, meet with appellant that night. Near the close of cross-examination, defense counsel again asked for the name of the informer, and the court again sustained an objection by the Government.

Following the testimony of agent Gol-son, agents Peach and Hopkins testified to essentially the same events described by Golson. They knew nothing about the source of Golson’s information, and they described their roles in the surveillance and apprehension of appellant. In addition, agent Hopkins read from defendant’s police record that Eddings had had two convictions for violating a local liquor ordinance within three years of the trial.

Following the close of the Government’s proof, appellant took the stand in his own behalf. He claimed that at 11:00 a.m. on May 22, he received a telephone call .from a man he did not know. The caller wanted to meet appellant at a filling station to discuss “selling me this merchandise, which was alcohol.” Appellant agreed to meet the man at noon at a filling station in Jackson. The meeting occurred, and the man at the station, whom appellant had never seen before, offered to sell him 50 gallons of whiskey that night. The two agreed to meet at 8:30 that night on Law Road,' although appellant testified that he waited until 9:30 to arrive at the meeting-spot in case there was a trap. He came to the agreed-upon place accompanied by Edward Smith and two women, none of whom, according to appellant, knew that appellant was to pick up whiskey. When he arrived at the designated site, he saw two men, one of whom was the man he had met at the filling station that afternoon. He inspected the liquor and then paid the other man $300. He then loaded the liquor into the trunk of the car and drove off. He testified that he had told no one about his plans to obtain the whiskey.

On cross-examination, appellant freely admitted that he never goes on time to buy liquor because he is wary of traps; that he did not like the Law Road meeting place because “[a] million have been caught on that road”; that agent Hopkins had arrested him “dozens” of times; and that he had planned to sell the whiskey he bought on May 22.

Following appellant’s testimony, Edward Smith and the two women who were in the car with appellant on the night of May 22 testified. They indicated that they had no idea that appellant was going to pick up whiskey that night until he began to load the liquor into the car, at which time they began to suspect that they were not merely on a detour to the drive-in movie to which they thought they were headed. They knew nothing about appellant’s prior arrangements with the mystery caller.

About two months before trial, appellant moved for an order requiring the Government to furnish him with “the names and addresses of all agents, Federal and State, who participated in the investigation and arrest in this case, including those who contacted this Defendant prior to and at the time of the arrest as a part of the investigation.” The court granted the motion, and subsequently denied a motion by the Government to reconsider. Shortly before trial, defense counsel was contacted by telephone by an assistant United States Attorney, who stated that the only names and addresses subject to the discovery order were those of agents Gol-son, Hopkins, Braxton, and Gary Peach. The Government accordingly did not supply the name of the informer in response to the court order, and did not claim a privilege for the nondisclosure. The record reveals no reference to this noncompliance at trial, except for appellant’s in-trial request for the name of the informer.

As stated above, appellant’s only defense was entrapment. The jury convicted appellant on both counts of his indictment but acquitted Edward Smith. Appellant was sentenced to 18 months’ imprisonment on one count and three years’ probation on the second count, the sentences to run consecutively.

Passing, for the moment, appellant’s contention that he was entrapped as a matter of law, we consider his claim that the court erred in refusing to order the Government to disclose to him the name of the informer who had alerted agent Golson. Resolution of this claim is governed by the decision of the Supreme Court in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), in which an informer had notified federal and state agents that he intended to purchase narcotics from the defendant and subsequently made the buy while under police surveillance. The informer was the only person present during the actual exchange of narcotics, although a federal agent was concealed in the trunk of the car in which the exchange took place. In holding that the trial court had erred in refusing to require the Government to divulge the name of the informer upon request of the defense, the Court stated:

A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. .
-X- -X- -X- -X- * *
We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

353 U.S. at 60-62, 77 S.Ct. at 628-629. As the Court has more recently put it, the informer’s “identity cannot be concealed from the defendant when it is critical to his case.” Branzburg v. Hayes, 408 U.S. 665, 698, 92 S.Ct. 2646, 2664, 33 L.Ed.2d 626 (1972). See also McCray v. Illinois, 386 U.S. 300, 310-311, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).

We have twice applied the above test either to reverse a district court’s decision not to require the Government to disclose the name of its informer or to require a court to hold an in camera hearing to determine whether the circumstances of the case dictated disclosure. United States v. Barnett, 418 F.2d 309 (6th Cir. 1969); United States v. Lloyd, 400 F.2d 414 (6th Cir. 1968). In both cases the informer was an eyewitness to, and in fact a participant in, the exchange of contraband by the defendant seller (Barnett involved moonshine; Lloyd involved narcotics). In both the sales were witnessed by Government agents who were the key prosecution witnesses at trial. In Lloyd, the defendant asserted that she did not have the requisite guilty knowledge; in Barnett, the defendant sought the opportunity to controvert the Government agent’s version of the transaction. We held in Barnett that the informer’s testimony would likely have been relevant and helpful to the defense and, accordingly, that the informer’s privilege had to give way. In Lloyd we remanded for a determination whether in fact the informer’s testimony would have been relevant and helpful.

Appellee urges that the facts of this case are sufficiently distinguishable from those in Barnett and Lloyd to justify refusal to divulge the informer’s identity in this case. Specifically, the Government contends that there is no proof that the informer who gave agent Golson the tip about appellant was the person from whom appellant bought the whiskey. Golson testified that he did not know who had sold appellant the whiskey, and he stated that he knew nothing about any telephone call appellant might have received on May 22.

We are unpersuaded by appellee’s argument. First, it ignores appellant’s uncontroverted testimony that he told no one about the proposed transaction and that the deal was made at noon on May 22. Thus, either the informer was the person with whom appellant negotiated and then consummated the sale or else he was in such close contact with that person that the inference arises that the two were working together. Second, if the seller of the liquor was not the informer, there is no evidence in the record to explain why the agents did not seek to apprehend the seller or at least to ascertain his identity. There is testimony that a car emerged from the woods near Law Road shortly before appellant’s car did, and that agent Peach followed this car for a few minutes until he was told that it was not Eddings’ vehicle (which agent Golson knew because he allegedly heard car doors and a trunk slam). It is logical to suppose that if the agents were in doubt about the identity of the seller, they would have attempted to discover who was driving this other vehicle, would have attempted to surveil the actual sale, or would otherwise have attempted to trap all parties to the exchange, yet the agents evinced no concern about the source of the whiskey.

Further, if the informer truly had nothing to do with the actual negotiation and consummation of the sale — a fact peculiarly within the capacity of the Government to establish — evidence of this could have been presented to the District Court in camera so that it would have been clear that the informer had nothing to offer that would have been relevant and helpful to the entrapment defense. Instead, the Government refused to comply with a pretrial discovery order that it reveal the names of all the agents who participated in the investigation of the case, and it objected at trial to disclosing the name of the informer without citing any reason other than the need to protect the confidentiality of its sources. When the evidence suggests, as here, that it is reasonably probable that the informer can give relevant testimony, the burden should be on the Government to overcome this inference with evidence that the informer cannot supply information material to the defense. See United States v. Skeens, 145 U.S.App.D.C. 404, 449 F.2d 1066, 1072 (1971) (Bazelon, C. J., dissenting); Rules of Evidence for United States Courts and Magistrates rule 510(c)(2) (1972).

Notwithstanding the foregoing, and despite the failure of the Government to come forward with any evidence of the lack of materiality of the informer’s testimony, we conclude that the court did not err in refusing to order disclosure. Not only do we disagree with appellant’s argument that the proof established entrapment as a matter of law, we believe that the proof approaches establishing predisposition as a matter of law. Appellant appears to be under the impression that entrapment is established if the accused shows only that the criminal scheme originated in the mind of the Government agent. Such is not the law. In Sorrells v. United States, 287 U.S. 435, 451-452, 53 S.Ct. 210, 216, 77 L.Ed. 511 (1932), the Court stated that

the defense of entrapment is not simply that the particular act was committed at the instance of government officials. That is often the case where the proper action of these officials leads to the revelation of criminal enterprises. . . . The predisposition and criminal design of the defendant are relevant. But the issues raised and the evidence adduced must be pertinent to the controlling question whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials. If that is the fact, common justice requires that the accused be permitted to prove it. The government in such a case is in no position to object to evidence of the activities of its representatives in relation to the accused, and if the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue. If in consequence he suffers a disadvantage, he has brought it upon himself by reason of the nature of the defense.

“To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.” Sherman v. United States, 356 U. S. 369, 373, 78 S.Ct. 819, 821, 2 L.Ed.2d 848 (1958).

In this case, appellant readily admitted on direct examination that he had been previously convicted in federal court for violation of federal liquor laws, that he met the anonymous caller at the filling station and agreed to purchase the 50 gallons about which the caller had spoken, and that he purposely arrived late to pick up the whiskey because if there was a “set up,” the federal agents would probably have departed. He indicated no hesitation in accepting the offer to purchase. To the contrary, he agreed to meet a complete stranger to strike up a bargain on the sale of whiskey. He went out to Law Road after having all day to consider whether he really wanted to consummate the sale, and he was so eager to purchase the whiskey that he went through with it even though he did not like both the fact that the sale was to take place on Law Road and the fact that he allegedly recognized agent Hopkins near the rendezvous point. On cross-examination, he testified that he does not like to arrive on time to these meetings because he fears “set-ups”; that agent Hopkins had arrested him many times; and that he intended to sell the whiskey he purchased from the stranger. In addition, one of the women arrested with appellant on the night of May 22 testified that she had heard that appellant was “a whiskey man”; several agents also testified to this effect; and there was evidence that appellant had had two recent convictions for violation of a local liquor ordinance.

Thus, although in the ordinary case the testimony of the informer would have been material to presentation of the entrapment defense, we do not believe that the informer's testimony in this case could have created in the minds of the jurors a reasonable doubt whether appellant was predisposed to commit the offense. On balance we believe that the record does not indicate that the informer’s testimony would have been relevant and helpful to the defense. Accordingly, the District Court’s refusal to order disclosure was not erroneous.

With respect to appellant’s contentions about the court’s charge to the jury, we do not believe that the court committed reversible error in refusing appellant’s special instructions or that the charge when taken as a whole erroneously described the respective burdens in the case. We believe that the charge did adequately inform the jury that the Government had the ultimate burden of proving beyond a reasonable doubt that appellant was not entrapped, although it would have been preferable for the court to have been explicit on this point in accord with appellant’s first special request. See Martinez v. United States, 373 F.2d 810, 812 (10th Cir. 1967); Notaro v. United States, 363 F.2d 169, 174-175 (9th Cir. 1966). Defendant was also entitled to an instruction that the jury could acquit him on the basis of circumstantial evidence, although again on the facts of this case, we do not consider it reversible error for the court to have refused appellant’s special request on this point.

The judgment is affirmed.

      . That portion of the charge concerning entrapment is as follows :
      Now, if you ladies and gentlemen entertain a reasonable doubt about any of the contentions of either or both of the defendants or if you entertain a reasonable doubt about the contentions of the government, or if you feel that the government has not proven the charges made against the defendants beyond a reasonable doubt, in any of those instances, you should return a verdict of not guilty as to any defendant about who you entertain a reasonable doubt.
      Now, the Defendant Eddings asserts that he was the victim of entrapment as to the crime charged in the indictment.
      Where a person has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement officers, or their agents, to commit a crime, he may be a victim of entrapment, and the law, if that were the case, as a matter of policy, would not permit a conviction in such a case if and when a jury would find that entrapment does exist as to a particular defendant.
      On the other hand, where a person already has the readiness and willingness to break the law, the mere fact that a government agent provided what appears to be a favorable opportunity, is not entrapment.
      For example, when the government suspects that a person is engaged in illicit sale of narcotics, it is not entrapment for a government agent to pretend to be someone else and to have information either directly or through an informer, or other person, to purchase narcotics from a suspect.
      If the jury should find beyond a reasonable doubt, from the evidence in this case, that before anything at all occurred respecting the alleged offense of violating the liquor law, as is involved in this case, that Eddings was ready and willing to commit a crime such as charged in this indictment, whenever the opportunity was afforded, or that he had the disposition to commit such a crime, and that the government officers or their agents did no more than offer the opportunity to catch him in the act of the crime, then the jury should find that the defendant is not a victim of entrapment.
      If the evidence in this case should leave you with a reasonable doubt as to whether the defendant had the previous intent or purpose or predisposition to commit a liquor law violation of the character charged, and did so only because he was induced, or persuaded, or corroborated [sic] by some officer or agent of the government, then in that event you would acquit the defendant.
      Now, the function of the law enforcement is the prevention of crime. In apprehension of criminals, criminal activity is such that requires undercover work, use of informers, whether paid or unpaid, and strategy are [sic] necessary weapons in the arsenal of the police officers, particularly in illegal liquor and narcotic cases, because of their very nature. However, a policeman may not originate a criminal design. An official of the government may not implant in the mind of an otherwise innocent person the disposition to commit an offense and to induce its commission in order that they may prosecute. However, the fact that government agents merely afford opportunities or facilities for the commission of an offense does not in and of itself constitute entrapment. Entrapment occurs only when the criminal conduct was the product of creative activity, procurement, corruption and inducement on the part of law enforcement official; thus, the claimed defense of entrapment brings about the alleging >of the conduct of the government agent. At the same time, one claiming entrapment will be subject to an appropriate inquiry into his own conduct and predisposition. Therefore, the reputation, past criminal activities, if any, and the conduct of, and attributable to the Defendant Eddings, pertaining to his criminal defense, intention or disposition, is a relevant consideration for the jury to determine in connection with this claim of entrapment by the defendant, Eddings, in this ease; all to the end of your determining whether or not the government has carried its burden of proof to establish every essential element of the charge of possession and transportation of illegal whiskey, including the showing that it has not corruptly implanted in the mind of the Defendant Eddings a predisposition to commit this alleged offense and to induce and persuade him improperly to do the things with which he is charged.


author:
TUTTLE, Circuit Judge:
      SIMPSON, Circuit Judge

text:
    Judith Ann PETERSEN et al., Plaintiffs-Appellants, v. TALISMAN SUGAR CORPORATION et al., Defendants-Appellees.
    No. 72-2057.
    United States Court of Appeals, Fifth Circuit.
    May 3, 1973.

      Joseph C. Segor, Miami, Fla., Timothy Dyk, Washington, D. C., for plaintiffs-appellants.

      William N. Lobel, Miami, Fla., Erie Phillips, Charles Kelso, Atlanta, Ga., for Talisman.
    Kirk Sullivan, West Palm Beach, Fla., for Heidtman.
    Before TUTTLE, WISDOM and SIMPSON, Circuit Judges.
   TUTTLE, Circuit Judge:

Talisman Sugar Corporation, a sugar cane grower and producer, paid passage for approximately 1,000 Jamaican workers to work at and live on its sugar plantation from November, 1971 to March, 1972. The Jamaicans were hired under a contract complying with federal regulations, and were brought to live in a camp near Belle Glade, Florida.

The camp consisted of housing for 1050 in the form of concrete block buildings. It had kitchen facilities, a mess hall, recreation facilities, a chapel, an infirmary, a laundry, and a store. Twice a week, the company brought in a minister to conduct religious services. In the store, it carried a general line of merchandise, including food and sundry items such as clothing. Traditionally municipal functions such as fire protection, sewage disposal, and garbage collection were handled by Talisman. There was a post office in the camp, but there was no public telephone of any kind. Though the company has telephones at its office some six miles from the camp which it allows anybody to use for an emergency, the workers cannot use these phones if they wish to make social or business calls.

The camp is almost totally isolated from the outside world. There are either fences or canals completely surrounding the 38,000 acre tract upon which it is located. Eight miles from the nearest highway and six miles deeper into Talisman’s property than the sugar mill, the camp is twenty-five miles from South Bay, the nearest town. Four or five miles beyond South Bay lies the somewhat larger community of Belle Glade. Only .one road leads from the camp to the highway, and this road is guarded by company employees. Though persons are admitted if brought to the camp on company business or if they come as friends or relatives of the migrant workers, Talisman has pursued a policy of excluding those it deems “inappropriate.”

Every other Saturday, the company furnished transportation to those workers wishing to go into the town of Belle Glade. The sole description of the town on these Saturdays was as follows:

“The streets ... on Saturday might have half the population of Belle Glade on them . . . 12,000, 15,000 people, something like that; and heaven knows how many of this six to eight thousand Jamaicans that are employed by the various sugar companies are there.”

Due to lack of their own transport and the language barrier which confronted them in Belle Glade, as well as their limited financial resources, few Jamaicans left the camp except on these biweekly excursions.

In addition to the Jamaicans, Talisman employed domestic workers including field equipment operators. Some of these field equipment operators requested that Talisman recognize the International Association of Machinists as their bargaining representative. When Talisman refused, on the grounds that many other employees did not support the unionization drive, the field equipment operators struck. When Talisman hired strike replacements, the strikers began picketing the company’s property. Shortly thereafter, members of the United Farm Workers Union joined the picket lines outside Talisman’s plantation.

Plaintiff-appellants Judith Ann Petersen, Florida counsel to the UFW, David Hernandez, Associate Director of the UFW Ministry, a religious group, and Franklin P. Smith, a Methodist minister associated with the Florida Christian Migrant Ministry, sought to visit the Jamaican cane-cutters during the course of the UFW-Talisman dispute. Miss Petersen was seeking to substantiate reports that the company had been illegally using the Jamaican cane-cutters as field equipment operators.0 The other two named plaintiffs were supporting this inquiry and wished additionally to present the workers with information concerning their religious organizations.

On February 1, 1972, plaintiffs, accompanied by Father Kerry Robb, an Episcopalian minister, appeared at the entrance of Talisman’s property and requested permission to talk with the Jamaican workers in the labor camp. The gatekeeper, defendant Sergio De la Vega, informed them that they would not be permitted to enter without Talisman’s permission. After apparently placing a call, De la Vega told the plaintiffs that permission had been denied. Nevertheless, asserting a right to visit the workers in their living quarters, plaintiffs proceeded to drive down the access road toward the camp. Other employees of the company followed them and said that Talisman’s general manager, defendant Miguel Cervera, had forbidden them from entering the camp.

Plaintiffs thereupon returned to the main entrance and waited inside the gate on company property until a deputy of defendant William D. Heidtman, Sheriff of Palm Beach County, arrived. The deputy informed the plaintiffs that it was the policy of the Sheriff’s office to arrest persons trespassing on labor camp property after being warned off. He said he was acting pursuant to Florida Statute § 821.01, F.S.A., which he read to the plaintiffs as follows:

“Whoever wilfully enters into the enclosed land and premises of another, or into any private residence, house, building or labor camp of another, which is occupied by the owner or his employees, being forbidden so to enter . shall be punished by imprisonment not exceeding six months, or by fine not exceeding one hundred dollars.”

Although the plaintiffs pointed out that the phrase “or labor camp” has been excised from the statute by the Florida Legislature in 1969, the deputy said that the protection given to “enclosed land” was enough, without more, to justify the arrest. The plaintiffs were arrested at this time, but no charges were pressed. However, after notice of appeal was filed in this case, an information was brought charging plaintiffs with trespass on Talisman’s property. The trial judge dismissed the charges on the ground that “to prevent their entry might lead to a condition where employees are subjected to a form of involuntary servitude, wherein the masters decide who may communicate with the servants.” State v. Petersen et al., Case No. 72M-8209, filed in the Small Claims-Magistrate Court, Criminal Division, in and for Palm Beach, Florida.

On February 7, 1972, plaintiffs instituted this class action in federal court, seeking a declaratory judgment and an injunction establishing the right of themselves and others similarly situated to visit the Talisman labor camp. Both compensatory and punitive damages were also sought against the defendants. Following a hearing on March 3, 1972, the district court entered an order dismissing the complaint. It held that Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) barred relief, and that plaintiffs were not proper class representatives, had no right to access to the labor camp under the Sugar Act and the Wagner-Peyser Act, had no standing to assert First Amendment rights of the Jamaican workers to receive information, and had no right of access to the camp under the First and Fourteenth Amendments.

Since the initiation of this suit, Talisman has spent over one million dollars on cane cutting machines, has given up its Labor Department certification for the importation of Jamaican workers, and has offered assurances that no workers will henceforth reside in the camp. The work force allegedly will be reduced permanently from 1,000 to 50 and the workers will commute except when there is reason to stay over. Though the buildings of the camp will not be destroyed, the services formerly provided will be discontinued. The gate will remain guarded, however, and access will continue to be granted only to those having direct business with the company or visiting employees “and those visits are desired by these employees.”

I. MOOTNESS

Plaintiffs sought not only declaratory and injunctive relief from the trial court, but requested that monetary damages be awarded for injury done under color of law. 42 U.S.C. § 1983. Though the damages action has been dismissed as to the Sheriff, the claim for damages against defendants other than the Sheriff is still a live controversy. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1956) and Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1968) recognize that even if the injunctive and declaratory relief sought is moot, the courts retain jurisdiction to decide upon the appropriateness of awarding damages.

Moreover, the operational changes effected by Talisman do not moot even the declaratory and injunctive relief requested. A discontinuance of wrongful conduct does not alone warrant denial of injunctive relief, for the appropriateness of granting an injunction against now-discontinued acts depends upon the bona fides of the expressed intent to comply, the effectiveness of the discontinuance, and, in some eases, the character of past violations, United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). Where “the underlying question persists and is agitated by the continuing activities and program” of the defendant, Carroll v. President & Commissioners of Princess Anne, 393 U.S. 175, 179, 89 S.Ct. 347, 350, 21 L.Ed.2d 325 (1968), a controversy is not moot.

Though Talisman has spent substantial sums on mechanical harvesting equipment and has relinquished its permit to import Jamaican laborers, the harvesting equipment is experimental and might have to be abandoned for manual labor if weather conditions become adverse. The permit can be renewed at any time, and there has been no change in the domestic labor situation which would lead the Labor Department to deny Talisman another permit this year. Though barren at the moment, the camp still stands and can be instantly resuscitated should the company require more labor.

II. ABSTENTION

The principle of comity announced in Younger v. Harris applies only to the portion of this suit in which Sheriff Heidtman is the defendant. It does not preclude relief in federal court against Talisman Sugar Corporation and its employees.

At the time this suit was filed, the plaintiffs had been arrested by a deputy of Sheriff Heidtman, but no criminal trespass charges had been filed. After the appellants had filed notice of appeal to this court, an information was sworn out accusing appellants of criminal trespass in violation of F.S. § 821.01, F.S.A. A hearing was later held on this charge in state court. Since we have held that Younger v. Harris is applicable not only to pending state court prosecutions, but to threatened future state prosecutions, Becker v. Thompson, 459 F.2d 919 (5 Cir. 1972), we hold that abstention in this case was proper insofar as the relief sought in federal district court was against the Sheriff. The proper forum for the plaintiffs to use to challenge the application of the criminal trespass statute to themselves was the court which dismissed these charges.

The doctrine of abstention is irrelevant to the other defendants in this case. Talisman and its employees were not parties to the state court prosecution, and they did not purport to act as officials of the State of Florida when they denied access to the appellants. Talisman’s denial of entry, while backed up by the deputy’s arrest, occurred both as a matter of company policy and as a matter of specific application to appellants even before the deputy sheriff arrived at the gate of the plantation.

In short, the state court prosecution could have no bearing upon whether or not Talisman’s guards continued to deny admission to the plaintiffs. As to the aspects of this case in which Talisman is the defendant, therefore, the relief sought is not “against any pending or future court proceedings as such.” Fuentes v. Shevin, 407 U.S. 67 at 71 n.3, 92 S.Ct. 1983 at 1989, 32 L.Ed.2d 556 (1971) (emphasis added).

III. STATUTORY RIGHT OF ACCESS

Plaintiffs argue they are accorded an implied right to communicate with Talisman’s workers on company property by the Sugar Act and the Wagner-Peyser Act, analogizing this right to the right of access which has been implied to protect organizational rights under the National Labor Relations Act. An evaluation of this claim requires scrutiny of both the right of access which has been implied under the NLRA and of the purposes of the Sugar Act and Wagner-Pey-ser Act.

As the Supreme Court noted in Central Hardware Co. v. National Labor Relations Board, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1971), the Section 7 right to form, join, or assist labor organizations “includes both the right of union officials to discuss organization with employees, and the right of employees to discuss organization among themselves.” 407 U.S. at 542, 92 S.Ct. at 2241. To insure that employees can learn the advantages and disadvantages of organization, the courts have implied a right of access for nonemployee union organizers during organizational campaigns to the extent necessary to facilitate the exercise of employees’ Section 7 rights.

The principle that the employer affected by the NLRA cannot so effectively isolate his employees that they are prevented from having contact with organizational groups is simpler to state than it is to apply. Compare NLRB v. Lake Superior Lumber Corp., 167 F.2d 147 (6 Cir. 1948) with NLRB v. Tamiment, Inc., 451 F.2d 794 (3 Cir. 1971). Were the UFW involved in an organizational campaign seeking to reach the Jamaican migrants and were such agricultural workers covered by the NLRA, we would be persuaded to follow the Lake Superior Lumber decision; if access to a lumber camp once a week and the provision by the employer of a recreation hall for discussion of union organization was too severe a limitation on the Section 7 rights of employees, access to workers once every two weeks while dispersed in town would surely be insufficient to insure the workers’ rights. However, since this is not a labor dispute governed by the NLRA, but a problem arising under the Sugar Act and the Wagner-Peyser Act, it is to these Acts that we must turn to see whether á statutory right of access should be implied to the plaintiffs over Talisman’s property.

The Sugar Act of 1948, 7 U.S.C. § 1100 et seq. provides for payments by the Secretary of Agriculture to producers of sugar. However, these payments are conditioned upon the employer meeting certain standards such as payment in full at reasonable rates of all sugar cane workers. 7 U.S.C. § 1131(c)(1). The congressional intent of this conditional payments scheme was that sugar cane workers receive minimum wages to be set by the Secretary. See Salazar v. Hardin, D.C., 314 F.Supp. 1257 (1970).

Contrary to plaintiffs’ contention, there is no evidence that Congress was primarily interested in the wages of domestic as opposed to foreign workers in cane fields when it enacted the Sugar Act. Nor have adequately-paid domestic employees hired by the same employer paying foreign employees at substandard levels been afforded protection under the regulations issued by the Secretary. The wage requirements apply with equal force to both foreign and domestic workers, the employer is required to keep records demonstrating that “each worker has been paid in full,” and that “any person who believes that he has not been paid in accordance with this part may file a wage claim.”

The basic objective of the Wagner-Peyser Act was to establish an interstate system for the recruiting and transfer of labor. 29 U.S.C. § 49(b). As we said in Gomez v. Florida State Employment Service, 417 F.2d 569, at 571-572 (5 Cir. 1969), the act was also intended to protect employees who move around the country to meet the needs of employers who use federal resources to secure workers. To fulfill this Congressional intention, we held in Gomez that the statute impliedly created a private civil remedy exercisable by the migrants against employers and officials charged with protecting their interests. We noted that it would have been unthinkable that Congress, “obviously concerned with people, would have left the Secretary with only the sanction of cutting off funds to the state.” 417 F.2d at 576.

The principal beneficiaries of both these Acts, therefore, are the Jamaican migrants living in Talisman’s labor camp, not the UFW organizers seeking access to them. In order to rely upon these laws, the UFW would have had to show that access by them is required to effectuate the migrant workers’ statutory rights. No such showing has been made.

We conclude that plaintiffs had no statutory right of access under the Sugar Act or the Wagner-Peyser Act. We must, therefore, face the broader constitutional question posed by this litigation.

IV. FIRST AMENDMENT RIGHT OF ACCESS

The district court’s dismissal of this action was in part premised upon the theory that, even if the company were subject to First Amendment strictures, the plaintiffs were not proper parties to represent the alleged right of the migrant workers to receive information. The court did not consider the propriety of the plaintiffs asserting a First Amendment right to bring information to the migrants and enter into discussions with them. While we agree that the standing of the plaintiffs to assert the rights of the Jamaicans is far from clear, see Lamont v. Postmaster General, 381 U.S. 301 at 307-308, 85 S.Ct. 1493, 14 L.Ed.2d 398 (concurring opinion), even if we ignore the divergence of interests discussed above we pretermit this question since in our view plaintiffs have standing on another ground.

Two cases reaching opposite conclusions on the merits are instructive on the question of the standing of a dis-seminator of information to sue to protect his own First Amendment rights. In Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943), a city ordinance prohibiting persons from distributing handbills, circulars, or other advertisements door-to-door was held unconstitutional. The plaintiffs, accorded standing to question the ordinance’s conformity to the First Amendment, were disseminators of religious information who had been arrested for door-to-door soliciting. In Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951), in which an ordinance barring door-to-door commercial solicitation was upheld, the plaintiff magazine sales representative was held to have standing to assert his own right to distribute his wares although he could not represent the rights of housewives to receive his products. Similarly, the plaintiffs here have standing to sue as members of the public who have sought to communicate with the workers living on the company’s plantation.

Turning to the merits, we must decide (1) whether sufficient state action exists to subject Talisman to the restraints of the First Amendment and (2) if so, whether the company’s restraints on the rights of the plaintiffs to talk with the migrants were a reasonable exercise of its Fifth and Fourteenth Amendment property rights.

We begin with the proposition that “the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only.” Lloyd Corp. v. Tanner, 407 U.S. 551, at 567, 92 S.Ct. 2219, at 2228, 33 L.Ed.2d 131 (1971). While a “special solicitude” has been shown for the guarantees of the First Amendment, the Supreme Court “has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only.” 407 U.S., at 568, 92 S.Ct. at 2228. However, neither is property insulated from the strictures of the First Amendment merely because it is owned by an individual or a company rather than a formally incorporated governmental unit. Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). Our inquiry, therefore, must be directed at whether or not Talisman Sugar Corporation occupies the shoes of the state for First Amendment purposes vis-a-vis these workers and the plaintiffs who seek access to them.

Mr. Justice Black in Marsh described Chickasaw, Alabama, a company town wholly owned by Gulf Shipping Corporation, as follows:

“Except for [ownership by a private corporation] it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a ‘business block’ on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town’s policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.” 326 U.S. at 502-503, 66 S.Ct. at 277.

The Court proceeded to hold that Gulf Shipping could not prohibit the plaintiff, a Jehovah’s Witness, from distributing literature on the streets of Chickasaw.

Like Chickasaw, the Talisman labor camp consisted of residential areas, streets, a store, eating facilities, a post office, and even a chapel. It was a self-contained community in which municipal services were afforded for a thousand migrants during the cane-cutting season, from fire protection and postal services- to sewage, garbage disposal, and electric services.

The labor camp here is more closely analogous to the traditional “company town” than were the shopping centers in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968) and Lloyd Corporation v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1971). While both these centers had numerous stores, parking and walking areas, and guards performing functions similar to those of city police, neither was located on a tract of land nearly as large as Talisman’s plantation nor did either provide the municipal facilities which normally accompany residential areas, such as postal services and garbage collections. In short, Talisman’s labor camp is more like a “company town” than either of the shopping centers which were subjected to First Amendment restraints on the theory that “where private interests were substituting for and performing the customary functions of government, First Amendment freedoms could not be denied where exercised in the customary manner on the town’s sidewalks and streets.” 407 U.S., at 562, 92 S.Ct., at 2225.

The threshold question of state action having been satisfied, the final inquiry under the First Amendment becomes the reasonableness of the owner’s restraints on the petitioners’ free speech rights. It is our obligation to accommodate the Fifth and Fourteenth Amendment rights of this property owner with the First Amendment right of those desiring access to the labor camp located within the plantation. The balancing of these various Constitutional rights, as the Supreme Court suggests in Lloyd Corporation, centers upon (1) the availability of alternative avenues of communication and (2) the use to which the property is put by the owner.

As our analysis of the statutory issue indicates, there are no effective alternatives open to the plaintiffs for communicating with the Jamaicans other than through access to the living area of the labor camp. The biweekly trip into Belle Glade is insufficiently frequent and otherwise inadequate to afford ^a reasonable opportunity for discussions between the plaintiffs and the workers. Nor is it reasonable to require the plaintiffs to sue the company for violating the Sugar Act and the Wagner-Peyser Act in order to obtain court orders permitting depositions to be taken from particular migrants. While we hold that Talisman must grant the plaintiffs access to the migrants in the labor camp, we nevertheless observe that the owner-employer may establish reasonable rules for granting access to prevent unnecessary interference with its business activities. Cf. Central Hardware Co. v.

NLRB, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1971).

The use to which Talisman has put its property also indicates that denial of access is an unreasonable restraint on the plaintiffs’ rights. While general access to the public, standing alone, may in certain cases require that the owner allow the exercise of free speech on those parts of his property which are dedicated to public use, see Flower v. United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653 (1971), the mere fact that the owner has sequestered its employees from general social intercourse with mankind can afford it no immunity from the prohibitions of the First Amendment. After all, many state-operated enterprises such as municipally-owned beaches and other recreational facilities are open only to town residents, but are nonetheless subject- to the First Amendment’s ambit. While openness to the public may prohibit the owner from excluding “those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put,” Logan Valley Plaza, 391 U.S., at 319-320, 88 S.Ct., at 1608 cited with approval in Lloyd Corporation, 407 U.S., at 560, 92 S.Ct. 2219, mere enclosure of a “company town” does not make it less of a town. By using its property as a round-the-clock habitat for its employees, Talisman has forfeited the broad right which the owner of sawgrass and marshes alone would have to enforce strictly a “No Trespassers” policy. Having located the functional equivalent of a thousand-resident municipality in the midst of its property, the company must accommodate its property rights to the extent necessary to allow the free flow of ideas and information between the plaintiffs and the migrants.

V. CLASS ACTION

The district court ruled that the plaintiffs had failed to show that, under Rule 23, “the class was so numerous that joinder of all members is impractical, that there are common questions of law and fact common to the class, that the plaintiffs fairly and adequately represent the purported class, and that the prosecution of this action will avoid the possibility of the prosecution of separate actions by individual members of the class.” However, this finding was premised upon the incorrect assumption that only through humanitarian concern for and representation of the interests of the migrant workers would the plaintiffs have a right of access. Having held that the plaintiffs as members of the public desiring to communicate with the migrants cannot be subjected to such restraints upon their First Amendment rights, we further find it altogether appropriate that the plaintiffs represent members of the public claiming a right to communicate with the workers.

As a practical matter, the class action aspect of this case is unimportant. Our order holding that the company cannot totally isolate its employees from such outsiders as the plaintiffs should operate equally to foreclose Talisman from so barring other visitors, be they labor organizers, church-affiliated personnel, or newspaper reporters. It is only to clarify our position that any member of the public is entitled to access insofar as is necessary to insure contact with the workers that we mention the class action issue at all.

The judgment of the trial court is reversed and the case is remanded to the trial court for further proceedings not inconsistent with the decision herein.

SIMPSON, Circuit Judge

(dissenting) :

I respectfully dissent.

Talisman has abandoned its migrant labor camp operation in favor of mechanical harvesting equipment for which it has spent more than a million dollars, and has not renewed its permit to import Jamaican laborers. These circumstances render extremely tenuous any supposition that the former labor camp operation will ever be renewed. Nonetheless, says the majority, the camp still stands and can be instantly resuscitated should the company require more labor. For this reason and because of asserted residual questions of damages the majority refuses to dismiss the appeal as moot. Perhaps this is correct, although the question is not without difficulty.

Assuming then that we should consider the appeal on the merits, I agree with the lower court’s conclusion that the plaintiffs had no standing to maintain this suit, and further that upon the facts and the law they were not entitled to the relief sought, either pendente lite or permanently. I would affirm the lower court’s dismissal of the complaint at the cost of and with prejudice to the plaintiffs. The unpublished order of the district court is reproduced as Appendix A to this opinion.

APPENDIX A

United States District Court Southern District of Florida Judith Ann Petersen, Franklin P. Smith and David Hernandez,

Plaintiffs,

versus No. 72-198-Civ-CF Defendants.

Talisman Sugar Corporation, etc., William D. Pawley, Miguel Cervera, Sergio De la Vega, and William Heidtman, Sheriff of Palm Beach County, Florida,

Defendants.

ORDER

This cause came before the Court upon plaintiffs’ motion for a prelimi- •' nary injunction. Although the Court was of the opinion that this cause was dismissable upon defendants’ motion to dismiss, out of an over-abundance of caution this matter was scheduled for a hearing upon plaintiffs’ application for injunction, and upon stipulation of counsel, this cause was consolidated with the hearing of the injunction application and was fully tried on its merits as to all issues, except the claim for damages, at the time of the injunction hearing. Rule 65(a)(2), Fed.R.Civ.P.

This is an action brought by an attorney, employed by the United Farm Workers, AFL-CIO, a domestic farm labor union, and two ministers, one the associate director of the National Farm Worker’s Ministry and the other a staff member of the Florida Christian Migrant Ministry, on behalf of themselves and a purported class they represent. It is claimed by the plaintiffs that their purpose is to improve the economic and social conditions of agricultural workers and that their purpose has been frustrated by the defendants who have denied them free ingress and egress to the defendant Talisman’s labor camp to visit with, meet with, and interview certain Jamaican farm laborers.

The defendant Talisman Sugar Corporation is a Florida corporation engaged in the growing, processing, and sale of sugar cane. In its business Talisman employs agricultural workers, both domestic and foreign. Because there are no domestic farm workers available to fill certain of its available positions, specifically sugar cane cutting or harvesting, defendant Talisman employes foreign laborers pursuant to various federal statutes and regulations, including but not limited to the Wagner-Peyser Act, 29 U.S.C. § 49 et seq. Defendant Pawley is the President of the defendant corporation; defendants Cervera and De la Vega are employees of Talisman. William Heidtman, Sheriff of Palm Beach County, Florida, has been joined as a defendant because he and his staff are authorized to enforce the various Florida criminal statutes, including § 821.01, trespass after warning. At this time, members of the United Farm Workers who operate heavy equipment and machinery at Talisman Sugar Corporation are striking Talisman. Picketing outside Talisman has been occurring for some time.

This action has been brought pursuant to a multitude of Federal Statutes and United States Constitutional provisions. The jurisdictional bases which the plaintiffs allege for this action are as follows:

1. The First Amendment of the United States Constitution, freedom of speech, religion, and assembly ;
2. The Fifth and Fourteenth Amendments to the United States Constitution, due process clause;
3. The Thirteenth Amendment to the United States Constitution, abolition of slavery;
4. 42 U.S.C. § 1983, civil rights actions for deprivation of rights under color of law, and 28 U.S.C. § 1343, jurisdiction over civil rights actions;
5. 18 U.S.C. § 245, criminal statute dealing with threatened or forceful interference with the exercise of certain civil rights;
6. 28 U.S.C. § 1331, federal question jurisdiction;
7. 28 U.S.C. § 1337, original jurisdiction of any civil action arising under Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies;
8. 29 U.S.C. § 49 et seq., Wagner-Peyser Act, establishing United States Employment Service;
9. 20 C.F.R. §§ 602, 604, and 620, Regulations promulgated under the Wagner-Peyser Act; and
10. 7 C.F.R. 863, Regulations promulgated under the U.S. Sugar Act.

As stated, the plaintiffs claim that theirs is a charitable purpose — to aid the plight of agricultural workers, particularly, in this case, the imported, temporary Jamaican farm workers employed by Talisman, and that this purpose cannot be accomplished without the defendant Talisman permitting the plaintiff and others to freely come and go into the Talisman labor camp. It is claimed that various rights of the plaintiffs have been improperly denied by Talisman’s barring the plaintiffs’ entry upon Talisman land and by the Sheriff’s enforcement of Florida Statute § 821.01, F.S.A., trespass with warning. It is further alleged that the Jamaican workers-housed upon Talisman land are being enslaved and held in some sort of bondage or involuntary servitude by reason of Talisman’s refusal to permit entry onto Talisman land of the plaintiffs who wish to meet with the Jamaican workers.

This matter is alleged to be an emergency matter. It is alleged by the plaintiffs that they seek immediate entry into the Talisman camp so that they might “investigate” certain charges that the defendant Talisman has been utilizing the Jamaican laborers in jobs other than those for which they were brought to this country. The plaintiffs allege that it has been reported to them that the Jamaican laborers are performing jobs which were being performed by the striking farm workers — operation of farm equipment and machinery. The striking workers are members of the United Farm Workers. The plaintiffs wish to accomplish this investigation before the end of the harvesting season, because at the end thereof the foreign workers are sent back to their country. The season will end within a matter of days.

As stated, the plaintiff .Petersen is counsel for the United Farm Workers, and one of the plaintiff ministers testified that 50 to 60 per cent of his time was spent advocating and furthering the cause of this union. Furthermore, the plaintiffs testified that they have participated in the ongoing picketing at Talisman, either by carrying pickets or by giving moral support and other aid to the picketers.

During the trial of this cause, it rapidly became clear that the plaintiffs’ purpose was and is not to help these foreign farm laborers. The investigation which the plaintiffs wish to conduct and the information they wish to obtain therefrom could not benefit the Jamaican workers. Assuming there have been violations of law in the assignment of jobs to the Jamaicans, and that has never been proven, such information could only detriment the Jamaicans. If it was found that Jamaicans were being used in unauthorized positions, the defendant Talisman would lose the right to employ these workers, and the workers would be immediately deported. All this would be of benefit to the United Farm Workers, which apparently wishes to man these Jamaican-held positions with their own union workers — at a higher wage, of course — or, alternatively, wishes to cause the defendant Talisman, against whom the union is already on strike, further economic hardship. But this would be of no benefit to the foreign agricultural workers. Furthermore, if the plaintiffs were truly concerned about the Jamaican farm workers’ welfare, it should not be a cause for their concern that these workers may be performing tasks easier than cutting sugar cane with a machete in a burned over field filled with snakes and rats.

Obviously, this case is nothing more than a tactic utilized by the union in an ongoing and heated labor dispute. This is not a suit brought to accomplish anything more than a result favorable to the union in this dispute. There has been no evidence to the contrary.

On the basis of these facts, the first and foremost question is the standing of the plaintiffs to bring this action. This is not a suit brought by the farm workers themselves such as Gomez v. Florida State Employment Service, 417 F.2d 569 (5th Cir. 1969). Plaintiffs allege, as one of the bases for jurisdiction in this case, the Thirteenth Amendment to the United States Constitution, abolition of slavery. But the plaintiffs are not persons affected by any sort of bondage. They have apparently asserted this Amendment only on behalf of the Jamaican workers employed by Talisman. None of the workers themselves have complained of enslavement, and there has been no showing whatsoever that these workers are serving in bondage or under conditions of involuntary servitude.

Standing has traditionally been held to mean that a party may only rely on those constitutional rights in which he has a personal interest. Tileston v. Ull-man, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943). Under traditional rules of standing, there must appear a “logical nexus between the [plaintiffs’ status] and the claim sought to be adjudicated.” Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968). The party seeking relief must have a personal stake in the outcome of the controversy and concrete adverseness must be shown. Troutman v. Shriver, 417 F.2d 171 (5th Cir. 1962).

In this instance, it is clear that the plaintiffs have no personal stake in the rights of these Jamaican workers and may not rely on the Jamaicans’ alleged constitutional rights as a basis for this lawsuit. The plaintiffs have no standing to assert these rights.

As stated, the present objective of the plaintiffs is to gain access to these foreign workers to investigate whether these workers are performing non-authorized jobs contrary to the Wagner-Peyser Act, 29 U.S.C. § 49 et seq., and the regulations thereunder. The plaintiffs, however, are not employees of any State, Federal, or Jamaican administrative agency authorized to conduct such investigations. Testimony given at the trial of this cause indicated that there are numerous agencies which regulate the employment of foreign laborers and, according to plaintiffs’ complaint, defendant Talisman’s business is highly regulated. Apparently, charges of violations of the Wagner-Peyser Act were filed with the appropriate State and Federal agencies and an administrative hearing was held with regard to these charges, but there has been no finding by any investigative body, nor at the administrative hearing of any such violations. Nor were any violations proved to this Court. Furthermore, there has been no showing that the plaintiffs have any right to conduct yet another investigation into this matter.

It is also claimed by the plaintiffs that Florida Statute § 821.01, F.S.A., is not enforceable against the plaintiffs to prevent their entry into labor camp grounds. It is alleged that this is so because in 1969 the statute was amended and the words “labor camp” were deleted therefrom. Armed with this newly amended statute, the plaintiffs entered Talisman’s land, refused Talisman’s request to leave, refused repeated requests by the Sheriff to leave, and finally submitted themselves to arrest for trespassing.

The plaintiffs now seek a declaration from this Court that labor camps are no longer private property for the purposes of enforcing the Florida trespass laws. This is a Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) situation. What the plaintiffs seek is an injunction of some sort of the state prosecution for trespass. The Court finds no reason why plaintiffs’ claim— that § 821.01 does not apply to labor camps and entry thereon — could not be asserted in State Court as a defense to the trespass charges, however. Furthermore, were the Court to rule upon this question, as requested, the plaintiffs have made no showing that the legislature intended to alter the law of property with regard to labor camps nor that trespass is not still a crime where it concerns enclosed lands in the form of labor camps.

Plaintiffs have brought this action in their own behalf and on behalf of all those similarly situated. Plaintiffs, however, have failed to make any showing under Rule 23, Fed.R.Civ.P., that the class is so numerous that joinder of all members is impracticable, that there are questions of law and fact common to the ■ class, that the plaintiffs fairly and adequately represent the purported class, and that the prosecution of this action will avoid the possibility of the prosecution of separate actions by individual members of the class.

It would be difficult if not impossible to find any other parties with the same interests as these plaintiffs — being neither members of the United Farm Workers nor Jamaican laborers nor persons who truly wish to aid, comfort, and benefit the Jamaican workers. Thus, this is clearly not a proper class action nor, as stated, háve plaintiffs laid a proper predicate to make it one.

Plaintiffs allege that they were deprived of certain constitutionally guaranteed rights; however, there has been no evidence to prove such claims. This suit is nothing more nor less than a labor dispute. The plaintiffs, on behalf of the United Farm Workers, are seeking here to use the civil rights laws and the First, Fifth, and Fourteenth Amendments to foster the Union’s cause. In deciding this case, the Court is not unmindful of Folgueras v. Hassel, 331 F.Supp. 615 (W.D.Mich.1971), Exhibit D to plaintiffs’ motion for preliminary injunction. However, the facts of this case are entirely different from those presented in Folgueras. The plaintiffs in Folgueras were members of a federal program, the Economic Opportunity Act program established for the purpose of aiding farm workers. Justice and equity alone demands a different decision in this ease.

In order to afford plaintiffs an opportunity to fully present their ease and so that a complete record could be developed, the Court denied defendants’ early motion for dismissal of the complaint and reserved ruling upon defendants’ motion for involuntary dismissal under Rule 41(b), F.R.Civ.P., after plaintiffs had presented their evidence. Pursuant to stipulation of counsel, approved by the Court, the cause has been tried upon the merits, except for the issue of damages.

The Court having found and concluded that the plaintiffs have no standing to maintain this case; and that upon the facts and the law the plaintiffs are not entitled to the relief sought, either pen-dente lite or permanently. It is thereupon

Ordered, adjudged and decreed that the complaint herein be and the same is hereby dismissed at the cost of and with prejudice to plaintiffs.

Done and ordered at West Palm Beach, Florida, this 10th day of March, 1972.

/s/ CHARLES B. FULTON Chief Judge

cc: Joseph C. Segor, Esq.

Judith Ann Petersen, Esq.

Mershon, Sawyer, Johnston, Dun-wody & Cole Charles Kelso, Esq.

      . These workers were employed under a contract between the British West Indies Central Labor Organization and the Florida Sugar Producers Association which reflected the requirements of regulations issued under the Sugar Act, 7 U.S.C. § 1100 et seq. and the Wagner-Peyser Act, 29 U.S.C. § 49 et seq. The employment was further governed by a temporary immigration permit issued by the Secretary of Labor under the Wagner-Peyser Act that domestic labor was not available to work as sugar cane cutters. By the terms of this permit and the regulations under the Wagner-Peyser Act, the Jamaicans were limited to working as sugar cane cutters and were forbidden to replace striking agricultural workers.

      . The UFW had filed a complaint alleging such violations with the Division of Labor, Department of Commerce of the State of Florida.

      . By stipulation of the parties, the plaintiffs dismissed their claims for damages against one defendant, Sheriff Heidtman.

      . The NLRA does not apply to agricultural workers such as those involved in this litigation. See 29 U.S.C. § 152(3).

      . 7 C.F.R. § 863.29.

      . 7 C.F.R. § 863.31 (emphasis added).

      . 7 C.F.R. § 863.33 (emphasis added).

      . The fact that only male Jamaicans lived in the camp is irrelevant; nothing in the First Amendment can he construed as providing protection for families, but not for individuals living separately from their families.

      . The migrant workers here have neither invited nor rejected the plaintiffs, though as occupants of dwellings they clearly have the right to repudiate solicitors. See Martin v. Struthers and Breard v. Alexandria, supra. All we hold today is that the owner of the property cannot exercise for the workers the decision to remain totally isolated from outside influences.