author: LIVELY, Circuit Judge.

text:
    Seanarfis RIVERS, Petitioner and Appellee, v. William LUCAS and the Honorable Henry Heading, Respondents and Appellants.
    No. 72-1792.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 9, 1973.
    Decided April 24, 1973.

      Dominick R. Carnovale, Chief App. Dept., Asst. Pros. Atty., Detroit, Mich., for respondents and appellants; Frank J. Kelley, Atty. Gen., State of Michigan, Robert A. Derengoski, Sol. Gen., State of Michigan, Lansing, Mich.,-William L. Cahalan, Pros. Atty., Wayne County, Mich., Edward R. Wilson, Asst. Pros. Atty., Detroit, Mich., on brief.
    Kenneth A. Webb, Detroit, Mich., for petitioner-appellee.
    Before WEICK, MILLER and LIVELY, Circuit Judges.
   LIVELY, Circuit Judge.

This is an appeal from a District Court order which granted a conditional writ of habeas corpus to Seanarfis Rivers who was in custody of the State of Michigan. The condition is that the prisoner be released unless the State shall reduce the charge against him to “not more than manslaughter.” The opinion of the District Court is reported at 345 F.Supp. 718. Pursuant to Rule 10(d), Federal Rules of Appellate Procedure, the parties filed the following agreed statement of the case:

On October 19, 1970, an Information was filed in the Recorder’s Court for the City of Detroit charging Petitioner-Appellee with the offense of Murder in the First Degree in Perpetration of a Larceny (Michigan Compiled Laws os [sic] 1948, 750.316 as amended by PA 1969, No. 331). Petitioner-Appellee was not charged with being the actual killer. On January 19, 1971, Petitioner-Appellee entered a plea of guilty to the offense of Manslaughter, which plea was accepted by the Recorder’s Court. On February 9, 1971, Petitioner-Appellee was sentenced to be committed to the State Correction Commission to serve not less than fourteen years nor more than fifteen years.

On June 28, 1971 the Michigan trial court denied Petitioner-Appellee’s Motion to Set Aside Plea of Guilty and for a New Trial and on that same date Petitioner-Appellee filed a Claim of Appeal in the Michigan Court of Appeals.

On March 23, 1972, the Michigan Court of Appeals ordered the conviction of Petitioner-Appellee reversed and remanded the cause to the Recorder’s Court for further proceedings. The sole authority cited in support of the Order by the Michigan Court of Appeals was the case of People v. Jaworski, 387 Mich. 21, 194 N.W.2d 868 (1972).

On April 18, 1972, Petitioner-Appellee filed with the Recorder’s Court a Motion to Quash Information or to Reduce Charge to Manslaughter. This motion was denied by the Recorder’s Court on May 11, 1972. On May 12, 1972 Petitioner-Appellee filed in the Michigan Court of Appeals an Emergency Application for Leave to Appeal from the denial of that motion and for Immediate Consideration and Motion for Stay of that Order and for Immediate Consideration. The Michigan Court of Appeals on May 15, 1972 granted Immediate Consideration and denied both the Stay and Leave to Appeal. On May 12, 1972 Petitioner-Appellee also filed in the Michigan Supreme Court Emergency Application for Leave to Appeal from that Order of the trial court, motion to bypass the Court of Appeals of Michigan, Motion for Immediate Consideration and motion for Stay of Proceedings. On May 18, 1972 the Michigan Supreme Court granted Immediate Consideration and bypass and denied Leave to Appeal and Stay of Proceedings.

On May 23, 1972, Petitioner-Appellee filed Application for a Writ of Habeas Corpus in .the United States District Court, Eastern District of Michigan, Southern Division, pursuant to which the Honorable John Feikens on June 14, 1972 ordered that the appellant be released from custody unless the State reduces the charge on the Information to no more than Manslaughter.

From the Order of the U. S. District Court, the respondents named therein filed their Notice of Appeal to the U.S. Court of Appeals for the Sixth Circuit on July 3, 1972.

On July 13, 1972 Petitioner-Appellee filed a Motion to Set Bond Pending Trial in the Recorder’s Court for the City of Detroit which was denied on July 18, 1972. On July 21, 1972 Petitioner-Appellee filed in the Michigan Court of Appeals Emergency Application for Leave to Appeal from that Order and for Immediate Consideration and to Set Bond. On July 27th the Michigan Court of Appeals granted the Motion for Immediate Consideration and denied the Motion to Set Bond and the Application for . Leave to Appeal. On August 3, 1972 Petitioner-Appellee filed in the Michigan Supreme Court Emergency Application for Leave to Appeal, for Immediate Consideration, and to Set Bond. On August 24, 1972 the Michigan Supreme Court granted the Emergency Application for Leave to Appeal and ordered PetitionerAppellee admitted to bail pending a determination of the instant appeal.

The appellants ask .that we reconsider and overrule Mullreed v. Kropp, 425 F.2d 1095 (6th Cir. 1970), wherein we directed that habeas corpus relief be granted a prisoner being held under circumstances similar to those in this case. The facts in the two cases are not exactly parallel in that the petitioner Mull-reed, at the time of his plea, was charged with two offenses in separate counts, and pled guilty to the lesser one; whereas appellee Rivers was charged in a single count with one offense and was permitted to plead to a lesser included offense. In Mullreed this Court held that the constitutional prohibition against double jeopardy would be violated if one who successfully appealed from a guilty plea to the lesser charge were permitted to be tried subsequently on the more serious charge contained in the indictment.

The original not guilty plea of Mull-reed to the more serious charge remained in effect at the time his guilty plea to the lesser charge was accepted. The crucial factor on the issue of double jeopardy was held to be “the State’s relinquishment of its rights, or its refusal, to prosecute on count one” (the more serious charge). 425 F.2d at 1099. However, the addition of the second count charging the lesser offense was not essential to the outcome, since the charges arose out of the same occurrence and the lesser offense of unarmed robbery was necessarily included in the charge of armed robbery. In the present case, the charge of manslaughter is a lesser offense included in the charge of murder. Thus the Mullreed rule applies even though appellee Rivers was only charged with one offense.

In Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), the Supreme Court discussed the history and development of the double jeopardy plea. It was pointed out that a defendant can be tried a second time for the same offense following a successful appeal from a prior conviction. This does not constitute double jeopardy, either on the theory that this defense is waived when the convicted person seeks to set his conviction aside, or on the theory that his former jeopardy is continued until all proceedings with respect to the first trial come to an end. He may even receive a more severe sentence on retrial. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The situation is different, however, when the jury has failed to find a defendant guilty on a more serious charge and convicted him on a lesser one. Then, when he is successful in overturning the conviction, he may not be put in jeopardy again for the more serious charge, though he may be tried again on the same, less serious offense, Green v. United States, supra, at 191, 78 S.Ct. 221. This Court held in Mull-reed that for purposes of testing a double jeopardy plea there is no difference between the jury’s refusal to convict on the more serious charge and a court's implicit refusal to do so when it accepts a guilty plea to a lesser included offense.

Shortly after Mullreed v. Kropp, supra, was announced, the Supreme Court, per Chief Justice Burger for a unanimous court (with one justice not participating) , rendered its decision in Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). Adopting the continuing jeopardy theory as described in Green v. United States, supra, the Court held that a jury’s conviction of manslaughter implied an acquittal of the charge of murder and the defendant could not again be subjected to the hazard of a murder conviction following reversal of the manslaughter conviction. The Court emphasized that the prohibition against double jeopardy is not one against being twice punished, but is concerned with the risk or hazard of conviction of an offense of which a person has been acquitted.

We affirm that there is implicit in a court’s acceptance of a plea to an included lesser offense a determination that the right to prosecute the defendant on the more serious offense with which he is charged has been relinquished. The effect of the entire transaction, for double jeopardy purposes, is the equivalent of a jury's refusal to convict on the more serious charge. Only if this is true may a defendant seek review of his conviction without being faced with the “incredible dilemma” of choosing between a legal right of appeal and the possibility that success will revive the hazard of conviction of a charge which the prosecution had willingly abandoned in exchange for his plea. Mullreed v. Kropp, supra, at 1102. The continuation principle of jeopardy makes it possible for appellee Rivers to be tried again for the same offense of which he was convicted by his guilty plea (manslaughter), but his successful appeal did not open the way for him to be once again subjected to the risk of a prosecution for murder.

The appellants contend that Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), overruled this Court’s decision in Mullreed v. Kropp, supra. Santobello dealt with “plea bargaining” and the rights of a defendant where the prosecution reneges on its agreement after obtaining a guilty plea. Since the Supreme Court remanded for consideration by the trial court of two alternative procedures for correcting the error, no consideration of double jeopardy was required. In stating that the defendant would plead anew to the original charge on two counts if the trial court should permit him to withdraw his original guilty plea, the Court did not say, or even intimate, that he could not plead the constitutional prohibition against double jeopardy as a bar to prosecution on the more serious of the two counts. The language of the Supreme Court places no limitation on the nature of the plea which a defendant in such a situation may interpose.

The appellants contend that the appellee Rivers did not exhaust his state remedies before seeking federal habeas corpus relief. The steps he has taken in the Michigan Courts are set forth in the statement of the case. The only thing left for him to do in the state courts is to submit to trial on .the murder charge. Since exposure to the risk of conviction is the very thing he is seeking to avoid, this step is not necessary for a complete exhaustion of state remedies where freedom from double jeopardy is the right sought to be preserved. As District Judge Feikens pointed out in his opinion, there is a valid consideration of judicial economy. Even if appellee were tried for murder and found guilty only of manslaughter, a new trial would be necessary, because the second jeopardy on a murder charge would not be harmless error. Price v. Georgia, supra, at 331, 90 S.Ct. 1757.

While the Supreme Court of Michigan has not ruled on the critical question in this case, the Court of Appeals of Michigan has consistently refused to follow Mullreed v. Kropp, supra. In the instant case, after the trial court had refused to quash the information or reduce the charge to manslaughter, the Court of Appeals of Michigan denied leave to appeal “for the reason that no persuasive basis therefor is presented to the Court.” Thereafter, the Supreme Court of Michigan granted bypass and denied leave to appeal without giving a reason. The appellee has presented his grievance to the courts of Michigan and they have had an opportunity to adjudicate his claim of a constitutional violation. This is sufficient to satisfy the requirement of 28 U.S.C. § 2254 that every available state remedy shall be exhausted. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

The appellants also maintain that since appellee has not been convicted he is not being held “pursuant to the judgment of a State Court” as required by Section 2254. This argument misconceives the nature of habeas corpus, which is an original civil remedy to secure the petitioner’s liberty, not another stage of the previous criminal proceedings. Fay v. Noia, supra, at 423-424, 83 S.Ct. 822. Appellee is being held pursuant to a judgment of the Recorder’s Court of Detroit which denied his motion to quash or reduce the charge to manslaughter. The statute does not require a final judgment of conviction. Furthermore, it was stated in Fay v. Noia, supra, that this statutory requirement is not jurisdictional: “The jurisdictional prerequisite [in the lower federal courts] is not the judgment of a state court ¡but detention simpliciter.” 372 U.S. at 430, 83 S.Ct. at 844.

It is also contended by the appellants that the granting of habeas corpus to a state prisoner being held for trial amounts, in effect, to issuing an injunction to stay state proceedings in contravention of 28 U.S.C. § 2283. The cases cited by appellants do not support their argument, and we have found no Supreme Court decision which holds that pretrial habeas corpus relief is the equivalent of an injunction to stay proceedings in a state court. We decline to follow Drury v. Cox, 457 F.2d 764 (9th Cir. 1972), to the extent that it equated the two types of action.

The Court has considered the arguments of appellants and the cases cited by them, including Ward v. Page, 424 F.2d 491 (10th Cir. 1970), cert. denied, 400 U.S. 917, 91 S.Ct. 177, 27 L.Ed.2d 157 (1970), and United States ex rel. Williams v. McMann, 436 F.2d 103 (2d Cir. 1970), cert. denied, 402 U.S. 914, 91 S.Ct. 1396, 28 L.Ed.2d 656 (1971). We continue to adhere to our decision in Mullreed v. Kropp, supra.

The order of the District Court is affirmed.

      . E. g., People v. Harper, 32 Mich.App. 73, 188 N.W.2d 254 (1971), where that Court said: “We hereby express total disagreement with the Mullreed opinion. It ignores the importance of the plea milieu. Compare, Ward v. Page, supra. We agree, rather, with every contention raised on behalf of the State of Michigan in Mullreed and think the Sixth Circuit’s opinion should not and "need not be followed in Michigan. . . . ” 188 N.W. 2d at 258.


source: Caselaw Access Project

author: WALLACE, Circuit Judge:

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRI-STATE STORES, INC., Respondent.
    No. 71-1563.
    United States Court of Appeals, Ninth Circuit.
    Sept. 29, 1972.
    Rehearing Denied June 18, 1973.
    Joseph C. Thackery, Atty. (argued), Paul J. Spielberg, Atty., Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Eugene G. Goslee, Acting Gen. Counsel, NLRB, Washington, D. C., Charles M. Henderson, Director, Region 19, NLRB, Seattle, Wash., for petitioner.
    George J. Tichy (argued), Spokane, Wash., Lloyd G. Martinson, Moscow, Idaho, Thomas K. Cassidy, of Basset, Donaldson & Hafer, Seattle, Wash., for respondent.
    Before HAMLEY, GOODWIN and WALLACE, Circuit Judges.
   WALLACE, Circuit Judge:

Pursuant to § 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), the National Labor Relations Board (hereinafter “NLRB”) has petitioned this Court for enforcement of its order issued against Tri-State Stores, Inc. (hereinafter “Company”) on October 1, 1970. The NLRB has ordered the Company to cease and desist from committing unfair labor practices, to offer to reinstate a discharged employee and to bargain with the Union upon demand. We hold the order of the NLRB is to be enforced.

The Company’s department store in Moses Lake, Washington, was the situs of the alleged unfair labor practices. It is one of two stores owned and operated as separate corporations by Doris E. Connelly. The other is located in Moscow, Idaho, about 100 miles away, where Connelly has her office and where the administrative functions of both stores are centered. The Moses Lake store had 41 employees at the time of the alleged violations.

Prompted by Connelly’s requiring polygraph tests to stem suspected pilferage, some of the Moses Lake employees held a meeting on September 2, 1969, to discuss this and other grievances. A Teamsters Union representative met with them and later contacted a Retail Clerks Union representative who met with 23 employees the following night. At that meeting, 22 signed cards authorizing the Union to act for them, and 6 more signed cards within a week, for a total of 28.

When the meetings were reported to Connelly, she sent Terri Clevenger (a management consultant), together with a gentleman business friend, to Moses Lake to deal with the situation. During a meeting with employees on September 6, Clevenger remarked that there were “questions coming up about raises,” said she “wanted [the employees] to be happy,” and asked if they “had anything bothering [them] or that [they] would like to have done.” An employee asked if a five-day work week could be substituted for the six-day week and Clevenger replied that she “didn’t know why [not].” Clevenger and the business friend then returned to Moscow and gave assurances to Connelly that, if Clevenger spent further time in Moses Lake, the employees would be “calmed.” About this time, the Company posted a notice at Moses Lake that the polygraph tests had been postponed.

There was also testimony that, on September 9 at a meeting of department managers, Clevenger advised that the doors would be closed if the employees unionized. Pursuant to a discussion in that meeting, all department heads immediately solicited the employees to send letters revoking the prior authorization given by the cards. Some employees were told of the threat to close the store. By the end of the day, 35 employees wrote letters stating they no longer wished the Union to represent them.

During the second week in September, employees who worked six days a week were rescheduled to five although they continued to work 40 hours. About three weeks later, however, the Company restored the original schedule. In addition, 19 employees received wage increases in their pay checks distributed some time after the middle of September. All but one of those receiving increases had either written a withdrawal letter or had never signed an authorization.

The NLRB affirmed the Trial Examiner’s findings (1) that the Company violated § 8(a)(1) of the Act by questioning its employees concerning their union activities, threatening them with closing the store if they did not cease such activity, soliciting them to withdraw their Union authorization cards and increasing their wages and improving their working hours to induce them to defect from the Union; (2) that the Company violated §§ 8(a)(3) and 8(a)(1) of the Act by discharging employee Ilse Iliff because of her interest in and activities on behalf of the Union; and (3) that the Company violated §§ 8(a)(5) and 8(a)(1) of the Act by refusing to bargain with the Union upon request after the Union had obtained authorization cards signed by a majority of the employees in an appropriate unit.

We have reviewed the record as a whole and conclude that there is substantial evidence therein to support the findings of the NLRB. 29 U.S.C. § 160 (e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

The Company has especially challenged the finding in relation to the discharge of Ilse Iliff. The Company argues that Moses Lake store manager Ehart had an adequate and independent legal basis for the discharge of Iliff. There is clear evidence in the record of Iliff’s insubordination. In front of other employees, Iliff called Ehart a “puppet on a string” and made several outspoken, rather critical, suggestions to Ehart as to how the store should be managed, including a suggestion of pay raises. Iliff also spoke critically of Ehart to her fellow employees and related the “puppet on a string” incident to them.

On the other hand, the apparent reason that Iliff called Ehart a “puppet on a string” was that she felt that Ehart did not have enough authority to do anything about employees’ grievances and, therefore, a trip to Moscow by Iliff to speak with Connelly would be necessary. Furthermore, four days prior to Iliff’s discharge the office manager for both stores telephoned Iliff, interrogated her about the Union’s organizational attempts and asked whether she had signed a Union authorization card. Although the office manager denied any knowledge of such a call, it is well-settled that the Trial Examiner has the responsibility of evaluating the credibility of witnesses and the weight to be given their testimony since he is in a position to observe demeanor and other firsthand indications of truthfulness. See NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 49 (9th Cir. 1970), and cases cited therein. Finally, the Trial Examiner and the NLRB felt the timing of Uiff’s discharge significant: she was not fired until two weeks after the “puppet on a string” incident; but the firing occurred on the very day before a meeting of the department managers which she would have attended and at which the subject of Union organizational activity would have been discussed. As we have said before,

[t]his court cannot displace the Board’s choice between two fairly conflicting views, even though this court would justifiably have made a different choice had the matter been before it de novo. . . . This deference extends as well to the inferences reasonably drawn by the Board, even though this court might have drawn different ones. NLRB v. Ayer Lar Sanitarium, supra at 48-49.

The Company questions the propriety of the NLRB order which directs it to bargain with the Union. The Company conceded the appropriateness of the bargaining unit. The' Union obtained 25 valid authorization cards and there were between 38 and 41 nonsupervisory employees. However, the Company refused to bargain with the Union and filed a petition with the NLRB alleging a bona fide doubt as to whether the Union had a majority. The apparent basis of this refusal was the sending of withdrawal letters by employees subsequent to their authorizations. However, there was substantial evidence of threats, coercion and restraint; and one apparent union sympathizer had been discharged. In addition, Connelly told store manager Ehart that she did not want the store unionized and that he should refuse any demand for recognition. Connelly sent Clevenger to Moses Lake to counsel the employees against unionizing; and it is not denied that Clevenger told employees that Connelly would close the store if they did so. Thereafter, various department managers, acting pursuant to the instructions of Clevenger, importuned the employees to withdraw their authorizations and, in some instances, even drafted the withdrawal letters.

In NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), the Supreme Court in sustaining the NLRB’s authority to issue bargaining orders when certain unfair labor practices have been committed, stated:

The only effect of our holding here is to approve the Board’s use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes. The Board’s authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer’s unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue. 395 U.S. at 614-615, 89 S.Ct. at 1940.

See also NLRB v. Ayer Lar Sanitarium, supra, 436 F.2d at 51; NLRB v. L. B. Foster Company, 418 F.2d 1, 3-4 (9th Cir. 1969), cert. denied, 397 U.S. 990, 90 S.Ct. 1124, 25 L.Ed.2d 398 (1970).

The NLRB found that a bargaining order was needed here because the unfair labor practices were “intended to undermine the Union and were so coercive as to destroy the likelihood of holding a free election among its employees.” Since this finding is supported by substantial evidence, the order to bargain is appropriate under Gissel. The Company interrogated and discharged a suspected Union sympathizer. It raised wages, changed working hours, threatened to close the store, and caused 35 of the 38 to 41 eligible employees to disavow the Union. There is substantial evidence to support the NLRB’s conclusion that: “In such circumstances, it strains credulity for respondent to assert its good faith, particularly when such assertion is predicated upon card revocations which were obtained through its own unlawful conduct.”

The Company argues that, even if it has been guilty of the unfair labor practices mentioned, the passage of time has dissipated the effects so thoroughly as to make an order to bargain inappropriate. As we stated in NLRB v. South Bay Daily Breeze, 415 F.2d 360, 367 (9th Cir. 1969), cert. denied, 397 U.S. 915, 90 S.Ct. 919, 25 L.Ed.2d 96 (1970):

We recognize that the passage of time brought about by respondent’s conduct may have cooled the organizational ardor that existed in 1965 or, indeed, may have seen the occurrence of substantial changes in the composition of the bargaining unit; but these difficulties are in some measure, the sort that inhere in any orderly system of adjudication, and are in any event not determinative. (Citation omitted.)

We have already pointed out the difficulty with the position argued for by the Company: employers would gain a great incentive to refuse to recognize a bona fide bargaining demand in hopes that a delay would terminate the difficulty. See NLRB v. L. B. Foster Company, supra, 418 F.2d at 4.

Accordingly, we find that the NLRB’s bargaining order is a reasonable exercise of its discretion and must be enforced in its entirety.

      . The NLRB’s decision and order are reported at 185 NLRB No. 117 (1970).

      . The Union involved is Retail Clerks Union, Local 1439, AFL-CIO.

      . Apparently, out of an abundance of caution, more withdrawal letters were solicited than the number of union cards signed.


author: MULLIGAN, Circuit Judge:

text:
    In the Matter of the Arbitration of Controversies between Gerald M. VARLEY, doing business under the tradename and style of Varley Textile Associates, Petitioner-Appellee, v. TARRYTOWN ASSOCIATES, INC., Respondent-Appellant.
    No. 540, Docket 72-2221.
    United States Court of Appeals, Second Circuit.
    Argued March 13, 1973.
    Decided April 23, 1973.
    Michael S. Colo, Rocky Mount, N. C. (Lans, Feinberg & Cohen, New York City and Spruill, Trotter & Lane, Rocky Mount, N. C„ of counsel), for respondent-appellant.
    Daniel Cohen, New York City (Ballon, Stoll & Itzler, New York City, of counsel), for petitioner-appellee.
    Before HAYS, MULLIGAN and OAKES, Circuit Judges.
   MULLIGAN, Circuit Judge:

This is an appeal from an order and judgment of the United States District Court, Southern District of New York, Charles L. Brieant, Jr., United States District Judge, entered on August 13, 1972, confirming a commercial arbitration award in favor of petitioner, Gerald M. Varley, doing business under the tradename and style of Varley Textile Associates (Varley) against the respondent, Tarrytown Associates, Inc. (Tarrytown) in the sum of $11,000. 346 F.Supp. 331 (1972). Reversed.

Varley is a textile consultant who entered into an oral agreement with Tarrytown which agreed to retain his company for a twelve month period at a rate of $1000 per month plus expenses and a per diem fee. Varley reduced the terms to writing in the form of a letter which was mailed to Tarrytown at its home office in Rocky Mount, North Carolina. The letter contained an arbitration clause not previously discussed but accepted by Tarrytown when the agreement was finally executed in North Carolina on March 3, 1971. The clause provided :

Any controversy arising under this agreement or breach thereof shall be settled by arbitration pursuant to the rules of the American Arbitration Association.

On April 29, 1971 Varley was paid $1000 plus his expenses and Tarrytown advised him that it was terminating the contract. Varley did not agree and on September 23, 1971 submitted the dispute to the American Arbitration Association. On October 20, 1971 Tarrytown advised Varley and the American Arbitration Association that it elected to rescind its agreement to arbitrate under the law of North Carolina which, according to respondent, considers agreements to arbitrate future disputes to be unenforceable and subject to rescission by either party. The arbitration proceeding was held in any event without Tarrytown making any appearance. On May 9, 1972 Varley was awarded $11,000 without interest, in full settlement of all claims. The award was served on Tarrytown and in June 1972, the proceeding below was commenced to confirm the award and for entry of judgment against Tarrytown pursuant to the United States Arbitration Act. 9 U.S.C. § 9.

Tarrytown concedes that the law of North Carolina is not applicable and that the United States Arbitration Act creates a national substantive law encompassing all questions of interpretation and construction of arbitration agreements, Coenen v. R. W. Pressprich & Co., 453 F.2d 1209 (2d Cir.), cert. denied, 406 U.S. 949, 92 S.Ct. 2045, 32 L.Ed.2d 337 (1972); Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402 (2d Cir. 1959), cert. dismissed, 364 U.S. 801, 81 S.Ct. 37, 81 S.Ct. 27 (1960), if the Federal Act is applicable. The Act is applicable only if the contract evidences a transaction involving interstate or foreign commerce. We agree with the court below that this contract did involve interstate commerce and is within the federal statute. It contemplated that Varley would act as a textile consultant throughout the United States and preliminary discussions evidenced the clear expectation that Varley would evaluate plants and fabrics manufactured /throughout the country. His per diem was fixed at different rates for services in this country and for those outside the United States. Tarry-town’s business was the investment of capital in textile enterprises throughout the country. See Dickstein v. duPont, 443 F.2d 783 (1st Cir. 1971); Metro Indus. Painting Corp. v. Terminal Const. Co., 287 F.2d 382, 387-388 (2d Cir.) (Lumbard, J., concurring), cert. denied, 368 U.S. 817 (1961). Appellant’s relianee on personal service contract cases such as Conley v. San Carlo Opera Co., 163 F.2d 310 (2d Cir. 1947) and Hart v. B. F. Keith Vaudeville Exchange, 12 F.2d 341 (2d Cir.), cert. denied, 273 U.S. 703-704, 47 S.Ct. 97, 71 L.Ed. 849 (1926), is not justified in view of Flood v. Kuhn, 407 U.S. 258, 92 S.Ct. 2099, 32 L.Ed.2d 728 (1972), which rejected the rationale of Federal Baseball Club v. National League of Professional Baseball Clubs, 259 U.S. 200, 42 S.Ct. 465, 26 L.Ed. 898 (1922), upon which our prior decisions were bottomed.

It does not follow however that simply because the contract in issue involves interstate commerce, a federal court has jurisdiction to confirm the award and enter judgment. The Act provides that confirmation of an arbitration award is appropriate only where the parties “in their agreement have agreed that a judgment of the court shall be entered upon the award . . .” 9 U.S.C. § 9. There was no such explicit agreement here but only a clause providing for the settlement of controversies by arbitration pursuant to the rules of the American Arbitration Association. While this is sufficient to incorporate the rules into the agreement, Reed & Martin, Inc. v. Westinghouse Elec. Corp., 439 F.2d 1268 (2d Cir. 1971); AAA Commercial Arbitration Rules § 1, there is nothing in the rules which indicates that the parties thereby consent to the entry of judgment upon an award.

Varley relies upon § 39(b) of the Arbitration Rules which provides:

Each party to an agreement which provides for arbitration under these Rules shall be deemed to have consented that any papers, notices or process necessary or proper for the initiation or continuation of an arbitration under these Rules and for any court action in connection therewith or for the entry of judgment on any award made thereunder may be served upon such party by mail addressed to such party or his attorney at his last known address or by personal service, within or without the state wherein the arbitration is to be held (whether such party be within or without the United States of America), provided that reasonable opportunity to be heard with regard thereto has been granted such party.

We construe this simply as a consent to the service of process which is necessary if a court is to obtain jurisdiction over a non-resident party. See, e.g., Reed & Martin, Inc. v. Westinghouse Elec. Corp., supra, 439 F.2d at 1276-1277; Mulcahy v. Whitehill, 48 F.Supp. 917 (D.Mass.1943). However, to be effective here the parties must have further agreed that judgment shall be entered upon the award. The American Arbitration Association itself recommends the following arbitration clause for insertion in all commercial contracts:

Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration in accordance with the Rules of the American Arbitration Association, and judgment upon the award rendered by the Arbitrator(s) may be entered in any Court having jurisdiction thereof.

This language is persuasive that the Association itself does not consider a mere reference to its Rules sufficient to act as a consent to the entry of a judgment by the Court. In view of the explicit language of § 9 of the Act requiring such agreement and finding none, we have no alternative but to reverse.

       9 U.S.C. § 2 provides :
      A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of sucb a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon sucb grounds as exist at law or in equity for the revocation of any contract.


author: WISDOM, Circuit Judge:

text:
    Mack L. BROCK, Plaintiff-Appellee, v. CORAL DRILLING, INC., et al., Defendants-Third-Party Defendants-Intervenors-Cross Appellees. BAROID DIVISION OF NATIONAL LEAD COMPANY, Defendant-Third-Party Plaintiff-Appellant-Cross Appellee, v. SHELL OIL COMPANY, Third-Party Defendant-Appellee-Cross Appellant.
    No. 72-1892.
    United States Court of Appeals, Fifth Circuit.
    April 20, 1973.
    Rehearing Denied June 15, 1973.

      Francis Emmet, New Orleans, La., for Baroid Div. of National Lead Co.
    John C. Theus, Thomas W. Leigh, Monroe, La., for Mack L. Brock.
    William G. Kelly, Jr., Monroe, La., Gordon F. Wilson, Jr., New Orleans, La., for Coral Drilling Inc.
    Thomas M. Hayes, Jr., Monroe, La., Frank C. Allen, Jr., New Orleans, La., for Shell Oil Co.
    Before WISDOM, BELL and COLEMAN, Circuit Judges.
   WISDOM, Circuit Judge:

Once again, we go down to the sea in drilling rigs. This case presents another question concerning the scope of the implied warranty of workmanlike service when measured in light of the indemnity principles of Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L. Ed. 133. Mack L. Brock, a roustabout Sieracki seaman working on a stationary drilling rig in the Gulf of Mexico, was injured while unloading deck cargo from a supply boat, the M/V Baroid Rocket. Brock sued the shipowner, who in turn sought indemnity from Brock’s employer, a drilling company. The district court permitted Brock to recover against the shipowner but denied the shipowner’s action for recovery over. We affirm in part and reverse in part.

I.

At the time of the accident, Mack L. Brock was employed as a roustabout by Coral Drilling Company to perform general labor in the drilling of an oil well on the continental shelf off the Louisiana coast in the Gulf of Mexico. Shell Oil Company had contracted with Coral to drill the well and had agreed to furnish certain supplies, including drilling mud, necessary to the operation. Under the contract, Shell purchased drilling mud from the Baroid Division of National Lead Company to be delivered by Baroid f. o. b. the rig. Coral agreed to furnish all personnel necessary to the operation of the rig, including roustabouts to unload bagged drilling mud from supply boats. Coral was given complete control and supervision over the discharge of supplies.

On November 15, 1968, Baroid’s supply boat, the M/V Baroid Rocket, was loaded at the Mayronne Dock in Venice, Louisiana. Captain Hoyt Bergeron, in charge of the vessel, was responsible for instructing the dock hands how to locate and secure the deck cargo, some 500 bags of drilling mud or gel, to stabilize the vessel. The deck cargo was on wooden pallets, with between 35 to 50 sacks per pallet, and was placed as far forward as possible behind the wheelhouse. Although such cargo is sometimes covered with tarpaulins or lashed to the- deck to prevent shifting in heavy weather, the captain determined that this was not necessary.

The vessel got under way at 6 p. m. and reached the rig about midnight, tying up port side to, with stern to the wind. During the trip, the weather was rough and the deck cargo shifted considerably. A few of the stacks were leaning, others had fallen to the deck, and some of the fallen sacks were broken. At about 1 a. m., Emery Sonnier, the Coral crew operator and roustabout pusher, assembled Brock and the other members of the roustabout gang to unload the deck cargo. Sonnier directed Brock and another roustabout to descend to the deck of the supply boat to unload the sacked mud. The weather was rough at this time. The seas were running from 6 to 12 feet high and the wind was blowing at 20 to 30 knots. Brock suggested to Sonnier that the weather was too rough to unload. The condition of the deck cargo was visible from the platform, and Sonnier could see that waves were washing over the stern, through the bulwark. Sonnier told Brock, however, that if the boat could tie up, he would unload it.

Brock descended to the deck of the vessel to reload the sacks on pallets so that they could be lifted to the platform. Since most of the spilled sacks were toward the stern, Brock placed the pallets there and began restacking. Waves continued to wash over the deck, through the bulwark. While Brock was picking up a sack of drilling mud and placing it on one of the pallets, a heavy wave came over the stern, lifted the pallet, and drove it toward Brock, pushing him back. Still holding the sack, Brock was backed into another pallet of stacked mud, striking his back and part of his leg. After this, Brock continued to work until the unloading operation was completed.

On January 14, 1970, Brock initiated suit against Baroid and Shell. Coral later intervened to claim reimbursement from Baroid for compensation paid to Brock under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. Baroid then cross-claimed against Coral and Shell for Ryan indemnity. Shell, in turn, cross-claimed against Coral for indemnity under its contract and against Baroid for breach of its obligation to deliver the goods safely to the rig. On February 4, 1972, the district court rendered its decision. The court found that the proximate cause of Brock’s injury was the unseaworthy condition of the deck of the M/V Baroid Rocket. The unseaworthy condition was caused by Baroid’s improper loading' of the cargo at Venice the day before the accident, coupled with the failure to secure the cargo in any way, and was compounded by the captain’s negligence in mooring the vessel port side to, with stern to seas running 6 to 12 feet, and with knowledge that the roustabouts would have to restack the cargo in those conditions. The court denied Baroid’s claim for indemnity against Coral and Shell, finding that Coral had not breached its warranty of workmanlike service. Baroid appealed.

II.

At the outset we meet the contention that Brock should have been denied recovery against the shipowner because of Brock’s contributory negligence. The district court found that Brock’s conduct was reasonable in the circumstances. It is clear that Brock was aware of the hazards caused by the condition of the deck and the position of the vessel. He protested that the weather was too rough, but nevertheless proceeded to unload the cargo after the Coral pusher directed him to do so. Baroid suggests that Brock should have refused. We cannot say, however, that the district court clearly erred in finding that Brock’s conduct met the standard of ordinary prudence. F.R.Civ.P. 52(a). Brock relied upon the judgment of the Coral pusher who had experience in such operations. Moreover, Brock’s decision must be evaluated in light of his economic dependence on Coral for future employment and the general principle that liability for failure to comply with safety regulations should be imposed on the party exposing the injured employee to the dangerous condition. Burrage v. Flota Mercante Grancolombiana, 5 Cir. 1970, 431 F.2d 1229. We therefore conclude that Brock was not eontributorily negligent.

III.

Baroid next contends that it is entitled to indemnity from Coral for breach of its warranty of workmanlike service. A shipowner, of course, has an absolute duty to furnish a vessel and gear reasonably fit for the purposes for which they were intended and is strictly liable for injury resulting from the unseaworthy condition of either. This liability is nondelegable and extends to longshoremen, stevedore employees, and others aboard the vessel. Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, Mitchell v. Trawler Racer, 1960, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941.

In some circumstances, however, a shipowner may be entitled to indemnity from a stevedore company for breach of its warranty of workmanlike service. In the litigation-generating Ryan case the Supreme Court held that a stevedoring company that enters into a service agreement with a shipowner is liable to indemnify the owner for damages sustained as a result of its improper stowage of cargo. The Court reasoned that the essence of the stevedore’s contract was the obligation to perform its work “properly and safely.” “Competency and safety . . . are inescapable elements of the service undertaken.” The Court emphasized that this implied “warranty of workmanlike service” finds its origin in contract, rather than tort, and is “comparable to a manufacturer’s warranty of the soundness of its manufactured product.” 350 U.S. at 133, 134, 76 S.Ct. at 237.

In Italia Societa per Azioni Di Navigazione v. Oregon Stevedoring Co., 1964, 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732, the Supreme Court, in holding that a stevedore breached its warranty of workmanlike service by supplying latently defective equipment, noted that the Ryan doctrine is premised on the idea that “liability should fall upon the party best situated to adopt preventive measures and thereby to reduce the likelihood of injury. Where, as here, the injury-producing and defective equipment is under the supervision and control of the stevedore, the shipowner is powerless to minimize the risk; the stevedore is not.” 376 U.S. at 324, 84 S.Ct. at 754.

Coral contends, however, that the dangerous condition of the vessel’s deck was caused by Baroid’s improper loading of the cargo and positioning of the vessel when, it was moored to the drilling rig. Coral would conclude that indemnity is precluded by Baroid’s breach of its duty of seaworthiness. We disagree. Although a stevedore is not obligated to make an intensive inspection of the vessel, once aware of a dangerous condition, the stevedore may riot ignore it. D/S Ove Skou v. Hebert, 5 Cir. 1966, 365 F.2d 341; T. Smith & Son, Inc. v. Skibs A/S Hassel, 5 Cir. 1966, 362 F.2d 745. The shipowner’s breach of the duty of seaworthiness does not provide a license for the stevedore to ignore the consequences of its own actions since the stevedore’s duty is to perform its services properly and safely in the face of known defects. Burrage v. Flota Mercante Grancolombiana, supra. Olin Mathieson Chemical Corp. v. United Stevedoring Division States Marine Lines, Inc., 5 Cir. 1970, 432 F.2d 1234, affirming 317 F.Supp. 1373. In T. Smith & Son, Inc. v. Skibs A/S Hassel, supra, for example, we noted that “defects which are in fact observed cannot be overlooked. If the stevedore has knowledge of a defect it should correct it or require it to be corrected by the ship’s officers.” 362 F.2d 747. Again, in Burrage v. Flota Mercante Grancolombiana, supra, we permitted the shipowner to recover against the stevedore despite the fact that the shipowner had breached its duty to furnish a seaworthy vessel. We stated: “The notion of workmanlike performance certainly encompasses an obligation by the contractor to take notice of those deficiencies and hazards likely to give rise to damage to life, limb, or property and then take requisite action depending on the nature of the relationship of the parties and their contractual obligations, express or implied, either to eliminate or minimize the hazard or to stop work until the situation is corrected.” 431 F.2d at 1232.

It is clear, therefore, that the warranty of workmanlike service demands that a stevedore must not continue to work its crew in the face of an unsafe or unseaworthy condition. Rather, it must remedy the situation itself, have the shipowner remedy it, or stop the operation.

In the present case, we think that Coral breached its warranty of workmanlike service. The record indicates that Coral’s pusher was aware of the condition of the vessel’s deck. He knew that the sacks would have to be re-stacked and that waves running 6 to 12 feet high were washing over the stern of the vessel. There was no immediate need to unload the cargo. Nevertheless, instead of remedying the situation or requesting the vessel’s captain to remedy it, he decided to proceed with the unloading. In so doing, he brought into play the unseaworthy condition and breached Coral’s warranty of workmanlike service.

The district court suggested that Coral should not be held to the same standard of workmanlike service as a stevedore because Coral’s employees were roustabouts and did not possess special expertise in unloading cargo. Thus, the court stated that Coral could rely on the vessel’s captain to inform the roustabouts if it was unsafe to unload the deck cargo. Since the captain was silent, the court concluded that Coral acted reasonably in unloading the deck cargo.

We cannot agree with this conclusion. Under the terms of the contract, Coral had complete control and supervision over the unloading of supply boats. It was Coral’s obligation to furnish the crew and supervisory personnel necessary to do the work safely. If the conditions were unsafe for unloading the vessel, Coral was responsible for suspending the operation. Furthermore, both Brock and Coral’s pusher testified that they had experience in unloading supply boats and knew exactly what to do. In these circumstances, holding Coral responsible for the injury resulting from its decision to unload the vessel is consistent with the principle that liability should fall on .“the party best situated to adopt preventive measures and thereby to reduce the likelihood of injury.” Italia Societa per Azione di Navigazione v. Oregon Stevedoring Co., 376 U.S. at 324, 84 S.Ct. at 754.

The district court also found that Baroid should be denied recovery under Waterman Steamship Corp. v. Dugan & McNamara Inc., 1960, 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 523. In Weyerhaeuser S. S. Co. v. Nacirema Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491, the Supreme Court stated, in dicta, that if the stevedoring company “rendered a substandard performance which led to foreseeable liability of petitioner [the shipowner], the latter was entitled to indemnity absent conduct on its part sufficient to preclude recovery.” 355 U.S. at 567, 78 S.Ct. at 441 (emphasis added). We have held that “conduct sufficient to preclude recovery” means only conduct on the part of the shipowner which prevents the stevedore’s workmanlike performance. Waterman Steamship Corp. v. David, 5 Cir. 1965, 353 F.2d 660, 665. Southern Stevedoring & Contracting Co. v. Hellenic Lines, Ltd., 5 Cir. 1968, 388 F.2d 267.

The district court did not specify what conduct on Baroid’s part prevented Coral’s workmanlike performance. We are likewise unable to find any such conduct. We conclude, therefore, that Weyerhaeuser does not preclude Baroid’s recovery.

Baroid also renews its claim for indemnity from Shell. The district court failed to find any negligence on Shell’s part. On the record before us, we cannot say that the district court clearly erred, and we affirm its decision.

Finally, in view of our holding that Coral breached its warranty of workmanlike service, we note that Shell is entitled to indemnity from Coral for any costs or attorneys’ fees incurred by Shell in defending the claims brought against it by Baroid. Dow Chemical Co. v. Barge UM-23B, 5 Cir. 1970, 424 F.2d 307; Lusich v. Bloomfield Steamship Co., 5 Cir. 1966, 355 F.2d 770.

The judgment of the district court must be affirmed in part and reversed in part. The cause is remanded for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

      . In the Longshoremen’s and Harbor Workers’ Act Amendments of 1972, 86 Stat. 1265, 33 U.S.C. § 901 et seq., Congress recently effected- major reforms in the liability of shipowners, as third parties, to pay damages to longshoremen and others injured while engaged in stevedoring operations. The Amendments provide that the liability of shipowners to Sieracki seamen, that is longshoremen and others who perform work on a vessel that is traditionally performed by seamen, must be predicated on negligence rather than on the no-fault concept of seaworthiness. The purpose of this change in existing law is to place the shipowner, in so far as third party liability is concerned, in the same position as land-based third parties in non-maritime pursuits. Thus, the shipowner will no longer be strictly liable to Sieracki seamen for injuries resulting from breach of its duty to furnish a seaworthy vessel. This approach prevents a shipowner from being liable for injuries which are really the fault of the stevedore.
      The effect of the Amendments is to eliminate the Ryan doctrine, under which the shipowner could recover against the stevedore for breach of its warranty of workmanlike service. Since the shipowner cannot be sued by a Sieracki seaman on the strict liability theory of unseaworthiness, Ryan indemnity from the stevedore is unnecessary. Furthermore, the Amendments state that contractual agreements requiring the stevedore to indemnify the shipowner for such damages are void as against public policy. See H.R.Rep.No.92-1441, 92nd Cong., 2d Sess. (1972), U.S.Code Cong. & Admin.News 1972, p. 4698.

      . Brock also named Coral Drilling Company and Cheramie Boat Company as defendants. Baroid had contracted with Cheramie for a captain and crew to operate the M/V Baroid Rocket. Baroid later assumed the defense of Cheramie and agreed to indemnify it for any loss. Brock’s claim against Coral was dismissed.

      . Shell cross-appealed against Coral to protect its claim for indemnity should Coral later be held liable for breach of its warranty of workmanlike service.

      . The present case differs from the situation in Ryan in that the party seeking indemnity, Baroid, is not in privity of contract with the party against whom indemnity is sought, Coral. Decisions since Ryan have recognized, however, that privity of contract is not required in order to qualify as a beneficiary of a stevedore’s warranty of workmanlike service. “[T]he obligations which arise from the implied warranty are not limited to the confines of the usual action on contract; the zone of responsibility may extend to parties who are not in direct contractual relationship.” Whisenant v. Brewster-Bartle Offshore Company, 5 Cir. 1971, 446 F.2d 394, 401. See Waterman Steamship Corp. v. Dugan & McNamara, Inc., 1960, 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169 and Crumady v. Joachim Hendrik Fisser, 1959, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed. 2d 413. In Whisenant, a barge owner sought indemnity from a drill pipe testing company whose breach of its duty of workmanlike service had made the barge unseaworthy. We permitted recovery despite the fact that the testing company’s service agreement was not made with the barge owner. In effect, the barge and its owner were viewed as third party beneficiaries of the testing company’s implied warranty of workmanlike service.
      So it is with the case at bar. Coral was under contract with Shell to control and supervise the unloading of cargo from supply boats. Baroid, as the shipowner, was the third party beneficiary of Coral’s implied warranty of workmanlike service. Waterman Steamship Corp. v. Dungan & McNamara, Inc.


author: BARRETT, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jon Randolph FLOYD et al., Defendants-Appellants.
    Nos. 72-1741 to 72-1752.
    United States Court of Appeals, Tenth Circuit.
    April 13, 1973.
    Rehearing Denied May 31, 1973.

      Jerry Cord Wilson, Asst. U. S. Atty., Oklahoma City, Okl. (William R. Burkett, U. S. Atty., Oklahoma City, Okl., on the brief), for appellee.
    Stephen Jones, Enid, Okl. (Eric J. Groves, Oklahoma City, Okl., and Charles F. Cox, Norman, Okl., on the brief), for appellants.
    Melvin L. Wulf and John H. F. Shattuck, New York City, for American Civil Liberties Union Foundation, amicus curiae.
    Before SETH, McWILLIAMS and BARRETT, Circuit Judges.
   BARRETT, Circuit Judge.

The appellants were convicted of going upon Tinker Air Force Base military reservation for the purpose of violating a lawful regulation prohibiting their entry without the permission of the commanding officer in violation of 18 U.S.C.A. § 1382. Section 1382 carries a fine of not more than $500 or imprisonment of not more than six months, or both.

On May 4, 1972 the appellants and 75 to 200 others gathered at Gate Two at Tinker Air Force Base in Oklahoma City, Oklahoma to protest the war in Vietnam. A group of between 30 and 40 people crossed the “white line” signifying entrance to the base. They were met by Lt. Col. George Malone who read them the following statement:

THE INSTALLATION COMMANDER, COL. JOHN C. HOLLEY, UNITED STATES AIR FORCE, DENIES YOU PERMISSION TO EN-ER THIS MILITARY INSTALLATION OR TO BE PHYSICALLY PRESENT ON ITS PROPERTY.
YOU ARE TRESPASSING ON A MILITARY INSTALLATION OF THE UNITED STATES. BY ORDER OF THE INSTALLATION COMMANDER YOU WILL IMMEDIATELY REMOVE YOURSELVES FROM THIS MILITARY INSTALLATION. IF YOU DO NOT IMMEDIATELY COMPLY, YOU WILL BE ARRESTED AND PROSECUTED BY THE FEDERAL AUTHORITIES. YOU ARE ADVISED THAT PURSUANT TO TITLE 18 USC 1382, “WHOEVER, WITHIN THE JURISDICTION OF THE UNITED STATES, GOES UPON ANY MILITARY, NAVAL, OR COAST GUARD RESERVATION, POST, FORT, ARSENAL, YARD, STATION, OR INSTALLATION, FOR ANY PURPOSE PROHIBITED BY LAW OR LAWFUL REGULATION . . . SHALL BE FINED NOT MORE THAN $500 OR IMPRISONED NOT MORE THAN SIX MONTHS, OR BOTH.” (R., Vol. II, p. 212)

The Appellant Flower then read a statement to Col. Malone. The group was asked to leave; instead, they sat down in the middle of the street and refused to leave. They were next placed on a bus and taken to Security Police Headquarters where they were photographed.

Tinker Air Force Base is one of the nation’s largest military installations, with thousands of civilian employees. Reports had been received by the Base Commander several days before the gathering that a demonstration against the Vietnam War was going to be held on the base.

Some of the appellants plead guilty; others were tried by the Magistrate. These 12 appellants were tried by the U. S. District Court.

Air Force Regulation 125-37 was promulgated on July 27, 1964 by then Air Force Chief of Staff General Curtis E. LeMay. It established procedures to protect Air Force physical resources. Regulation 125-37 was revised and supplemented several times thereafter. On May 3, 1972 Col. John C. Holley, then Commander of Tinker Air Force Base, supplemented AFR 125-37 by the promulgation of OCAMA-TAFB Supplement 2 which effectively precluded the demonstrators from entrance because they did not qualify as “visitors”. See United States v. Vaughan, 475 F.2d 1262 (10th Cir. 1973). The appellants were convicted under § 1382 of violating Supplement 2.

The appellants contend that: (1) the trial court erred in denying them a jury trial; (2) Supplement 2 is void and violates the due process clause; (3) the trial court penalized them for standing trial; and (4) the trial court erred in overruling their motion for judgment of acquittal.

I.

The appellants contend that they were entitled to a trial by jury because of the seriousness with which a violation of § 1382 is regarded by the community. The District Court ruled against them in United States v. Floyd, 345 F.Supp. 283 (W.D.Okla.1972), holding that a violation of § 1382 is a petty offense which does not entitle the defendants to a jury trial, and further that Article III, Section 2, Clause 3 and the Sixth Amendment of the United States Constitution do not extend to petty offenses. A petty offense is defined in 18 U.S.C.A. § 1(3) as: “Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both . . . ” If an offense is malum in se it may be serious enough to require a jury trial even though it qualifies as a petty offense. District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930). The offense here is malum prohibitum. Congress has not been silent on this subject as the appellants suggest. It has intended that there be no jury trial for a petty offense. 18 U.S.C.A. § 1(3). If the offense is a petty offense within 18 U.S. C.A. § 1(3) and is not otherwise a serious offense under prior U.S. Supreme Court decisions then a jury trial is not required. Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966). The reasoning of the District Court is sound. The evidence supports its holding. See United States v. Floyd, supra. The violation of Section 1382 here involved constitutes a petty offense not requiring a trial by jury.

II.

The appellants allege that TAFB-OCAMA Supplement 2 to AFR 125-37 is void because it was never lawfully adopted. They also contend that Supplement 2 violates the due process clause because it established only policies which cannot be criminally violated and that it is void for vagueness because it failed to announce the acts it forbids.

The appellants argue that Supplement 2 is void because it was not promulgated in compliance with the Federal Register Act, 44 U.S.C.A. § 1501 et seq. and the Administrative Procedure Act, 5 U.S.C.A. § 500 et seq.

We hold that there is no merit in this argument. Both are, in effect, “notice” statutes intended to protect persons who have no actual notice from in any manner being adversely affected. It is unrealistic to contend that “closed base” commanders charged with the obligation of protecting the national security thereon, cannot adopt regulations effective immediately, even if only orally communicated to the base security personnel, so long as such regulations are thereafter communicated to one who wishes to enter upon the base. Neither the Federal Register Act nor the A.P.A. require publication of Supplement 2 on the facts of this case. In recognition of the needs involving national security, we recently held that once one is within an area where base security is imposed, a search may be conducted without probable cause, and without consent. United States v. Vaughn, supra.

The appellants contend that Supplement 2 is void because it was issued in direct violation of the controlling regulation it supplements, AFR 125-37. Paragraph 2 of AFR 125-37 provides in part as follows:

Further, the on-base violation of a lawful regulation issued by a base commander may be sufficient to sustain the removal from the base of a person not subject to the UCMJ and to sustain a criminal prosecution of such a person for an unauthorized reentry of the base under 18 USC 1382 even though the base regulation may not have been issued pursuant to 50 USC 797.
(Para. 2, AFR 125-37, 27 July 1964)

Paragraph 4 of 125-37 announces mandatory steps which must be taken for subordinate regulations to have legal effect. The requirements in paragraph 4 generally pertain to prosecutions of offenses arising under 50 U.S.C.A. § 797 and the offense of re-entry after removal under 18 U.S.C.A. § 1382. The appellants were not charged with the crime which the regulation defines. It is within the sole discretion of the commanding officer of a “closed base” to promulgate rational regulations excluding people from the military installation in the interest of the national security. He has practically exclusive and extensive power to exclude persons from the base in the interest of good order and military discipline. Cafeteria & Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); McQueary v. Laird, 449 F.2d 608 (10th Cir. 1971).

The 4th Circuit recently held in Burnett v. Tolson, 474 F.2d 877 (4th Cir. 1973), that where military reservations are open to the public it is now clear that civilians have an unqualified right to enter these public areas to exercise their constitutional right to freedom of expression. Where the area is open to the public the base commander has no discretion but has a ministerial duty to allow leafletting. However, when the military reservation is a “closed base”, the base commander at Tinker had the authority to determine the degree of control over personnel entering or leaving the base. Para. 6b, AFR 125-37, 27 July 1964.

The appellants challenge whether posting a sign outside the confines of Tinker Air Force Base sufficiently conveys actual notice of Supplement 2. The large sign reads as follows:

WARNING
U.S. AIR FORCE BASE
IT IS UNLAWFUL TO ENTER THIS AREA WITHOUT PERMISSION OF THE COMMANDER TINKER AIR FORCE BASE WHILE ON THIS INSTALLATION ALL PERSONNEL AND THE PROPERTY UNDER THEIR CONTROL ARE SUBJECT TO SEARCH

(Sec. 21, Internal Securities Act of 1950: 50 U.S.C. 797)

To be sure, the sign does not convey actual notice of the entire content of Supplement 2. It was not, however, the only notice that the appellants had that Tinker Air Force Base was a controlled entry installation. They were warned by the sign, the five security guards, and the fence around the installation. In any event there can be no question that the sign and the security guards gave the appellants actual notice that they could enter only with the permission of the base commander. The record is clear that they were informed of his denial of their right of entrance before they entered the base.

The appellants argue that Supplement 2 violates the due process clause of the Fifth Amendment to the United States Constitution in that it is void for vagueness, and that it establishes guidelines only, thereby lacking the sufficient enjoinder required of prohibitive regulations.

AFR 125-37 grants the base commander the authority to determine the security to be imposed on personnel entering or leaving the base. Paragraph 6b, AFR 125-37, 27 July 1964. Pursuant thereto the Base Commander promulgated Supplement 2 on May 3, 1972. Twenty-five copies of Supplement 2 were sent to the security guards at the gates. The procedures set forth in Supplement 2 prohibit all persons who do not possess proper identification from entering the base. The language is plain. Those who have proper identification may enter the base and those who do not have such identification may not enter the base. Courts do not require the same precision and specificity of standards in military regulations as in criminal statutes. Dash v. Commanding General, Fort Jackson, South Carolina, 307 F.Supp. 849 (D.S.C.1969), aff’d, 429 F.2d 427 (4th Cir. 1970), cert. denied 401 U.S. 981, 91 S.Ct. 1192, 28 L.Ed.2d 333 (1971). We agree with the District Court which stated:

It is not significant or prejudicial to the Defendants that the Information describes the regulation as one prohibiting the entry upon the military reservation “without the consent or permission of the Commanding Officer,” rather than “without proper identification.” Such language is merely descriptive of the regulations, which speaks for itself. The important fact is that the regulation prohibited entry to certain persons. It becomes a matter of proof as to whether the Defendants were such persons and intended to enter the base knowing that they were so prohibited. (R., Vol. I, pp. 130, 131)

III.

The appellants allege that the trial court penalized them for exercising their right to stand trial in the District Court. Those who pleaded guilty before the Magistrate were given suspended sentences except for one defendant who received a one-year probation. Those who pleaded not guilty and who were tried by the Magistrate received suspended sentences except for one defendant who received a two-year probation. Of the twelve defendants who were tried in the District Court, the women received probationary terms, while the men received prison terms of from 4 to 6 months plus varying fines.

In United States v. Wiley, 278 F.2d 500 (7th Cir. 1960), the Court held that a person may not be punished because he has, in good faith, exercised his right to stand trial, even though his effort proves unsuccessful, and that it is improper to make his sentence more severe because he has done so. There is no evidence in the record to support the application of this rule to these appellants. We have held and now hold that when the sentence is within the limit prescribed by the statute, the length of the sentence imposed is within the discretion of the trial court and will not be disturbed by the reviewing court. United States v. Stidham, 459 F.2d 297 (10th Cir. 1972), cert. denied 409 U.S. 868, 93 S.Ct. 168, 34 L.Ed.2d 118 (1972); Andrus v. Turner, 421 F.2d 290 (10th Cir. 1970); Martin v. United States, 364 F.2d 894 (10th Cir. 1966). The sentences imposed on the appellants were within the statutory limits.

IV.

The appellants contend that the trial court erred in overruling their motion for judgment of acquittal because the Government failed to prove each essential element of the crime beyond a reasonable doubt.

On appeal the evidence is considered in the light most favorable to the Government. United States v. Weiss, 431 F.2d 1402 (10th Cir. 1970). Although the Government conceded that the identification procedure in the early part of the trial did not clearly reflect the names of the appellants, the trial court had an opportunity to observe those persons who were identified during the trial. There was no error.

The appellants contend that the motion for a judgment of acquittal should have been granted because the Government presented no evidence of their purpose or intent to enter the Base without permission of the Base Commander. Intent and purpose may be inferred from the facts and circumstances surrounding the case which reasonably tends to demonstrate mental attitude. United States v. Woodring, 464 F.2d 1248 (10th Cir. 1972); Cummings v. United States, 289 F.2d 904 (10th Cir. 1961), cert. denied 368 U.S. 850, 82 S.Ct. 83, 7 L.Ed.2d 48 (1961). The warning sign posted at the entrance to the Base just north of Gate Two was visible to anyone who walked or drove onto the base. It states that permission to enter is required. The closed Base, evidenced by the guards, the warning sign, and the fence, gave due notice and warning to the demonstrators that they were approaching a military installation involving the national security. Officer Twomey attempted to hold the group back. He told them that they were not allowed on the Base unless they had permission of the Base Commander. Appellant Tom Flowers asked Officer Maddox what would happen if they crossed the “white line”. He was told they would be arrested. Upon entering Col. Malone told them to leave. He read them the warning. In lieu of obeying, they sat down and refused to leave. They carried placards protesting the war in Vietnam. Their intent to enter the base without permission and their intent to demonstrate against the Vietnam war on the Base may be reasonably inferred from these facts.

The appellants allege that the Government failed to prove the location and jurisdiction of the Court beyond a reasonable doubt. This contention has no merit. The trial court properly took judicial notice that Tinker Air Force Base is within the Western District of Oklahoma. United States v. Carter, 430 F.2d 1278 (10th Cir. 1970). The trial court did not err in denying their motion for judgment of acquittal.

Affirmed.

      . Supplement 2 reads in part as follows: AFR 125-37, 27 July 1964, is supplemented as follows:
      6b.1 ENTRY CONTROL PROCEDURES FOR TINKER AIR BASE:
      a. This supplement applies to members of the general public as well as Air Force personnel. Personnel with identification other than those identified in b, c and d below are prohibited from entering into Tinker Air Force Base.
      b. The following personnel identification will be recognized at all perimeter gates for base admittance: . . .
      c. Subject to the security requirements as determined by the installation commander, the following personal identification may be recognized at Gates 1 and 2 for base admittance: . . .
      d. Subject to security requirements as determined by the installation commander, personnel with identification other than those described in 6b and c above may be authorized admittance to Tinker Air Force Base under the following procedures :
      (1) Visitors desiring admittance to Tinker Air Force Base must state the nature of their visit and the person or activity to be visited, to Security Police Division personnel.
      (a) Statements submitted in accordance with 6b.ld(l) above will be verified by Security Police personnel prior to the issuance of identification or an admittance to base.
      (b) Monitors for major staff offices, OCAMA, and tenant organizations are authorized to verify visitor’s admittance statements to Security Police Division. Military personnel may verify individual guests as authorized by 6b.l(d) (2) below.
      (c) Upon verification visitors will be issued proper identification.
      (OCAMA-TAFB, Supplement 2, AFR 125-37, 3 May 1972)

      . In general, to have legal effect for various categories of persons, any directive or regulation applying to the protection of USAF physical resources should meet the following requirements:
      a. For persons subject to the UOMJ, it must:
      (1) Be issued by order of the base commander. At bases utilizing civilian contractor guards, the authority to issue such directives cannot be delegated to the civilian contractor.
      (2) Clearly describe, identify, and locate the property or area.
      (3) State that specific permission of the commander is required to enter or use the particular area or resource.
      (4) Be posted or otherwise displayed to insure that the individual has constructive or actual knowledge of the directive.

        b. For persons not subject to the UCMJ, to sustain removal and order not to re-enter under 18 USC 1382, it must:
      (1) Meet the requirements stated in a (1) through (3) above.
      (2) Direct removal and forbid re-entry, in the name of the base commander.
      c. For all persons within the US, its territories and possessions, it must:
      (1) Meet the requirements stated in a (1) through (3) above.
      (2) Have been issued by a person designated in DOD Directive 5200.8.
      (3) Be posted in a conspicuous and appropriate place. For standardization, the display of such a directive at gates of bases or areas will satisfy this requirement.
      (4) Pertain to one of the subjects listed in 50 USC 797.
      (5) State that it was issued under the DOD directive and the statute. The notice to the public incident to the issue of the regulation must also contain the same statement.
      (6) Cover a physical area that is subject to USAF jurisdiction, administration or custody.
      (Para. 4, AFR 125-37, 27 July 1964)

      . Closed Base. It will be:
      (a) Posted with warning signs at all perimeter gates and along the base perimeter.
      (b) Patrolled internally by air police forces in vehicles. Air police forces will be assigned at perimeter gates, when open, to control personnel and vehicle traffic.
      (c) Fenced around the perimeter, when practicable.
      (Paragraph 6(a)(1), AFR 125-37, 27 July 1964)


author: BRATTON, District Judge.

text:
    UNITED STATES of America, Appellee, v. Eric MEDINA-FLORES, Appellant.
    No. 72-1670.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Feb. 21, 1973.
    Decided May 7, 1973.

      Nathan G. Graham, U. S. Atty., Tulsa, Okl. (Ben F. Baker, Asst. U. S. Atty., with him on the brief) for appellee.
    Ray H. Wilburn, Tulsa, Okl., for appellant.
    Before HILL and DOYLE, Circuit Judges, and BRATTON, District Judge.
   BRATTON, District Judge.

The appellant was convicted of knowingly and intentionally importing marijuana into the United States and of knowingly and intentionally possessing it with intent to distribute, in violation of 21 U.S.C.A. §§ 952(a), 841(a)(1).

Medina-Flores was a passenger in a 1961 Carryall bearing Texas license plates as it approached the toll gate on the Will Rogers Turnpike at Miami, Oklahoma, on April 23, 1972. The driver of the vehicle was Ruben Sanchez-Chavez. The other passengers were Mrs. Sanchez, her baby and a Canadian citizen.

A cheek point operated at the toll gate was being manned at the time by Agent Murphy of the United States Border Patrol. After Sanchez-Chavez had paid the toll, Murphy approached the car, identified himself and asked if the car’s occupants were all United States citizens.

Sanchez-Chavez responded in the affirmative and identified two of the passengers as his wife and baby. Because Sanchez-Chavez understood Murphy’s question, which was put to him in English, and because Sanchez-Chavez responded in English, the agent was initially satisfied that Sanchez-Chavez was a United States citizen.

Agent Murphy found it necessary to address appellant in Spanish in order to elicit a response from him. Medina-Flores then handed the agent a crossing card, which allowed him to enter the United States, and another form which would allow him to be in Texas, New Mexico, Arizona and California. The agent then told appellant to get out of the car, and had him stand at the rear of the vehicle.

He next ascertained that the Canadian passenger was legally in this country and then returned to talk again with the driver to see if he could establish whether the driver was guilty of transporting an illegal alien, Medina-Flores. Upon questioning, the driver told the agent that he had picked up Medina-Flores near Dallas.

At this point, two other Border Patrol officers arrived, one of whom was coming to relieve Murphy at the check point. One of them questioned Medina-Flores, who told that officer that Sanchez-Chavez had picked him up at Neuvo Laredo, Mexico.

Agent Murphy, armed with this conflicting information, asked Sanchez-Chavez to step over to the patrol car, where he asked him to furnish some identification. A draft card was produced, listing height, weight and a facial sear that the agent believed did not correspond to the physical characteristics of Sanchez-Chavez.

The agent by now suspected that Sanchez-Chavez might not be an American citizen, and he asked him if he had any other scars or marks. The response was in the negative.

No further scars or marks were shown on the draft card profered, but the agent asked Sanchez-Chavez to let him see his hands and arms. The agent intended, by such inspection, to see if there were any marks or scars on Sanchez-Chavez that would show the draft card was not his. Sanchez-Chavez rolled up the sleeves of his shirt, and the agent saw tattoos, scars and puncture marks. Almost simultaneously, the agent became aware that Sanchez-Chavez had a poor complexion and had been eating candy throughout the questioning, two of the marks, he thought, of an addict.

It was at this moment that the other officers advised Agent Murphy that Mrs. Sanchez was also an illegal alien.

Murphy asked the other officers to look at the arms of Medina-Flores. One of the officers asked him to roll up his sleeves. He complied, and puncture marks on his arms were disclosed.

Agent Murphy askéd Sanchez-Chavez when he had last used any narcotics, and Sanchez-Chavez replied that he wasn’t using anything except methadone. In response to the agent’s interrogation, Sanchez-Chavez said that he had no methadone with him and indicated he didn’t know when he would next get any.

The three officers consulted together and decided that reasonable grounds existed to search the vehicle for narcotics. The officers had no search warrant.

A search of the vehicle began, and a hypodermic syringe was found, as well as a burned bottle cap. During the course of the search, one of the officers noticed that the screws holding the carryall’s paneling had been tampered with and that the entire inside of the vehicle had been repainted. The officers removed the paneling and discovered packages of marijuana.

Everyone who had been riding in the vehicle was immediately advised of his or her rights and placed under arrest, except for Medina-Flores, who was already under arrest for being an alien illegally in Oklahoma. He, however, was also advised of his rights after the contraband had been found.

The facts above were disclosed at the hearing upon the motion of the defense to suppress the evidence found in the search of the ear. The motion was denied, and the evidence was admitted at trial.

On appeal, it is urged that the observation of needle marks upon the arms of Sanchez-Chavez, following the officer’s request that he roll up his sleeves, was an illegal search of his person to which appellant has standing to object. It is further urged that the viewing of appellant’s arms was also an illegal search and seizure. Because of these two actions by the officers, the appellant contends, it follows that the search of the carryall was also wrongful, and the marijuana found should have been suppressed.

It cannot be validly argued that the initial detention of the vehicle’s passengers for routine investigative purposes was unreasonable. United States v. Granado, 453 F.2d 769 (10th Cir. 1972); United States v. Saldana, 453 F.2d 352 (10th Cir. 1972); 8 U.S.C.A. § 1324(a). The surveillance of traffic on the turnpike was a routine duty of the officer, and his observation in the vehicle of three persons of Mexican descent furnished appropriate circumstances for his first questions to the vehicle’s passengers regarding citizenship. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Granada, supra; United States v. Saldana, supra.

No attempt is here made to justify those events occurring after the initial detention as a border search, undertaken pursuant to 8 U.S.C.A. § 1357(a)(3). The United States concedes that probable cause to believe the vehicle carried narcotics imported contrary to law was required to validate the search of the vehicle. In this connection, it should be noted that the record discloses that the officers were also United States Customs officials and thus not limited to investigate solely for the presence of illegal aliens. United States v. McCormick, 468 F.2d 68 (10th Cir. 1972); United States v. Anderson, 468 F.2d 1280 (10th Cir. 1972); 19 U.S.C.A. § 482.

The threshold question presented is whether appellant has any standing to object to the officer’s view of the arms of Sanchez-Chavez. Assuming that what took place amounted to a search of the person of Sanchez-Chavez, appellant has no standing to challenge the legality of such a search. United States v. Humphrey and Mickens, 409 F.2d 1055 (10th Cir. 1969); see United States v. Johnson, 454 F.2d 700 (9th Cir. 1972). On the other hand, the appellant is a “person aggrieved” within the meaning of Fed.R.Crim.P. 41(e), and he has standing to object to the warrantless search of the carryall in which was found the marijuana he stands convicted of importing and possessing. Jones v. United States, 362 U. S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

The record reflects that the search of the vehicle was undertaken after the officers had knowledge that appellant was an illegal alien who stated he had been picked up at Nuevo Laredo, Mexico, and after the driver of the carryall had been discovered to be a narcotics addict who stated he used methadone but had none with him. They were further armed with the knowledge that appellant’s statement about where he had joined the group conflicted with the driver’s statement that he had picked appellant up near Dallas, Texas.

Such circumstances gave the officers probable cause to believe that a crime was in the course of its commission and justified the ensuing search of the carryall without regard to the discovery of needle marks on appellant’s arms. United States v. Humphrey and Mickens, supra. It is therefore unnecessary to reach the issue of whether the view taken of appellant’s arms constituted an illegal search of his person.

Affirmed.