author: LEVIN H. CAMPBELL,

text:
    INMATES OF the SUFFOLK COUNTY JAIL et al., Plaintiffs, Appellees, v. Thomas S. EISENSTADT, etc., et al., Defendants, Appellees, Frank A. Hall, Defendant, Appellant.
    No. 73-1377.
    United States Court of Appeals, First Circuit.
    Heard March 6, 1974.
    Decided April 8, 1974.

      Terence P. O’Malley, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., and Walter H. Mayo, III, Asst. Atty. Gen. were on brief, for appellant.
    Max D. Stern, Boston, Mass., with whom Burnham, Stern & Shapiro, Matthew Feinberg, Boston, Mass., and Stanley A. Bass, NAACP Legal Defense & Educational Fund, New York City, were on brief, for Inmates of Suffolk County Jail, appellees.
    Lawrence J. Ball, Asst. Corp. Counsel, Boston, Mass., with whom Kevin F. Mo-loney, Asst. Corp. Counsel, Boston, Mass., was on brief, for Sheriff of Suffolk County, and others, appellees.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL,

Circuit Judge.

The Massachusetts Commissioner of Correction appeals from an order of the district court entered in aid of its judgment rendered in an action brought by inmates of Boston’s Charles Street Jail (the “Jail”). 360 F.Supp. 676 (D.Mass. 1973). The inmates had sued under 42 U.S.C. § 1983 complaining of unconstitutional conditions at the Jail, and the court, after extended proceedings, had found that the “quality of incarceration at Charles Street is ‘punishment’ of such a nature and degree that it cannot be justified by the state’s interest in holding defendants for trial; and therefore it violates the due process clause of the Fourteenth Amendment.” Id. 360 F. Supp. at 686. Defendants in the inmates’ action were the Commissioner and officials of Suffolk County, including the sheriff, master of the Jail, and county commissioners. Though the Jail is administered by the county rather than the state, the Commissioner holds significant statutory responsibilities and powers relevant to the Jail, infra.

In the court’s judgment entered June 20, 1973, from which they took no appeal, all defendants, including the Commissioner, were enjoined from housing in any cell at the Jail after November 30, 1973, more than one inmate awaiting trial. The court remarked in its opinion that achieving single cell occupancy would likely require a reduction in the population, and that defendants should consider transferring inmates to other state and county institutions. Id. 360 F.Supp. at 690. The transfer of women inmates to the Massachusetts Correctional Institution, Framingham, a state facility for women controlled by the Commissioner, was mentioned as a means to free additional cells, the women’s section at Charles Street being underutilized.

By mid-November, the court had been advised by the Suffolk County officials that they could not comply with the November 30 deadline for ending multiple cell occupancy since there was no place under their control to put the surplus inmates. Appellant Commissioner, doubtless hard pressed by budgetary and other constraints, offered no cooperation; yet it had become apparent that the unconstitutional crowding at the Jail could be relieved immediately only through the use of space and facilities outside Suffolk County which the Commissioner alone had the statutory power to command.

Faced with the County’s dilemma, the district court ordered the Commissioner to cooperate with the sheriff to arrange for a transfer of female inmates from the Jail to other institutions. The situation remained static, however, and four days later the court, after calculating the maximum number that could be accommodated at the Jail under a single cell plan, and after ascertaining that there were sufficient vacancies elsewhere for the overflow, entered the order from which the Commissioner has appealed. It requires the Commissioner to transfer all women confined at the Jail to the Massachusetts Correctional Institution at Framingham, or to any other state or county facility for the detention of women inmates, pursuant to his statutory authority to effect statewide transfers. The order also requires male detainees with state felony records to be transferred to other state or county institutions whenever needed to ensure single cell occupancy at the Jail. In its memorandum accompanying the order, the court stated that the Commissioner was “the only person in the Commonwealth” in a position to arrange for the confinement of the women inmates elsewhere than at the Jail; and likewise that only the Commissioner had the necessary authority to transfer male detainees.

Appeal from the order was taken solely by the Commissioner. Suffolk County officials support it. We hold the order to be valid.

Appellant does not argue to us that unconstitutional conditions at the Jail could be better relieved by a different plan, or that facilities exist in Suffolk County for the surplus inmates. Indeed, he could scarcely do so, since the court entered the order only after the Commissioner and other defendants were unable to come up with any reasonable alternative. Nor does appellant claim that compliance is impossible.

Appellant’s contention is simply that the district court lacked power to order him to make transfers “without a showing of unconstitutional conduct on his part.” However, appellant underestimates his own statutory duties respecting the Jail and its inmates, as well as the district court’s equitable powers to remedy violations of the Constitution. See, e. g., Swann v. Charlotte-Mecklen-burg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).

When the inmates’ complaint was filed, the Commissioner, besides his unique state-wide transfer powers, had “general supervision of jails and houses of correction,” M.G.L. c. 124, § 1(a). This has recently been sharpened to present language directing him to “establish . . . minimum standards for the care and custody of all persons committed to county correctional facilities”, and to secure compliance with such standards. M.G.L. c. 127, § 1A. See also M.G.L. c. 127, § IB; c. 124, §§ 1(d), (q). He is also authorized to inspect county institutions, and county officials are, in turn, to report annually to him. M.G.L. c. 127, §§ IB, 10. His powers at such facilities further extend to prisoner classification, id. § 21, and the furnishing of consultation services, technical assistance, and grants-in-aid, id. § 1A. In sum, while the day-today funding and management comes from the county, the Commissioner has major statutory responsibilities bearing precisely on the issues raised in the inmates’ suit.

It is apparent why authority has been so centralized. The county jails and institutions are part of a state-wide system of detention and corrections. The Jail holds those awaiting felony.trials in a major session of the state court. Many detainees will thereafter serve their sentences in state institutions managed by the Commissioner. Inmates and their records are moved daily between state-managed and county-managed institutions. The Jail cannot be viewed in splendid isolation from the rest of the Commonwealth.

Given both the practicalities of the situation and his statutory role, the Commissioner may not disavow any responsibility for conditions at the Jail or from reasonable measures to bring them up to constitutional standards. The question is not one of his personal fault; an official may be enjoined without proof of fault. “The result, not the specific intent, is what matters.” Rozecki v. Gaughan, 459 F.2d 6, 8 (1st Cir. 1972). Nor is there refuge in the distinction between malfeasance and non-feasance. See Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1969). Doubtless there comes a point at which an official, having no statutory responsibility whatever over certain matters, has a right not to be forced to participate in a rescue operation; but this ease does not even approach that point.

The Commissioner’s links with county institutions in the integrated system are more than enough to support remedial relief of this nature. See Washington v. Lee, 263 F.Supp. 327, 332-333 (N.D. Ala.1966) (three-judge court), aff’d 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968). Cf. Griffin v. County School Board, 377 U.S. 218, 232-233, 84 S.Ct. 226, 12 L.Ed.2d 256 (1964); Hart v. Community School Board, 42 U.S.L.W. 2428, 2429 (E.D.N.Y. Feb. 19, 1974). The district court allowed the defendants a fair chance to work out remedies among themselves; and doubtless it will continue to respect the expertise of the Commissioner and the practical difficulties he may face. But it need not perpetuate inhuman conditions out of an overly-nice solicitude for the division of powers and duties between county and state officials where together they share a joint responsibility for the proper functioning of the Jail.

The Commissioner’s legal position is additionally weakened by his failure to appeal from the judgment of the district court. There is independent merit to appellees’ argument that the Commissioner is now foreclosed from claiming that he is not a proper party to this action and that no injunction could be issued againt him. F.R.A.P. 3, 4. On appeal from a collateral order, the underlying judgment is immune from attack. 9 J. Moore, Federal Practice jf 110.14[1] (2d ed. 1973). Furthermore, prior to entry of the final judgment the Commissioner had unsuccessfully moved to dismiss on essentially the same ground advanced here; had he wished to preserve the point, he should have appealed from the judgment. But whether the appeal is narrowed, or whether it is seen as raising the broader issue asserted by the Commissioner, we find it to be without merit.

Affirmed.

      . M.G.L. c. 27G, § 52A: “Persons held in jail for trial may, with the approval of the district attorney ... be removed by the commissioner of correction to a jail in another county . . . . In addition, such persons, if they have been previously incarcerated in a correctional institution of the commonwealth under sentence for a felony, may, with the approval of the district attorney, be removed by the commissioner of correction to a correctional institution of the commonwealth, . . . . ”
      M.G.L. c. 127, § 97: “The commissioner may transfer any sentenced prisoner . . . with the approval of the sheriff of the county . . . from any jail or house of correction to any such [state correctional] institution ... or from any jail or house of correction to any other jail or house of correction.”

      . Tlie term “county correctional facilities” covers jails as well as county houses of correction. M.G.L. c. 125, § 1(d), (f) ; c. 126, § 4.


source: Caselaw Access Project

author: LUMBARD, Circuit Judge:

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HUDSON BERLIND CORPORATION, Respondent.
    No. 493, Docket 73-2112.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 20, 1974.
    Decided April 5, 1974.
    Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, John D. Burgoyne and Stanley R. Zir-kin, Attys., N.L.R.B., Washington, D. C., on the brief, for petitioner.
    Lawrence Rosenbluth, New York City (Rosenbluth & Rosenbluth, New York City, on the brief), for respondent.
    Before LUMBARD, FRIENDLY and TIMBERS, Circuit Judges.
   LUMBARD, Circuit Judge:

The National Labor Relations Board petitions this court for enforcement of its order of May 2, 1973, which found that the Hudson Berlind Corp. violated the National Labor Relations Act when it entered into a collective bargaining agreement with Local 222 of the International Production, Service and Sales Employees Union at a new, consolidated facility. 203 N.L.R.B. No. 63. The Board concluded that by signing this agreement Hudson Berlind violated its duty under the Act to remain neutral until its employees’ choice of bargaining representative at the new facility was settled. For reasons set forth below, we enforce the Board’s order.

H. Berlind, Inc. was engaged in the wholesale distribution of household goods and related products with its principal place of business at Floral Park, New York. Its ten warehouse employees were represented by Local 810, Steel, Metals, Alloys, and Hardware Fabricators and .Warehousemen, affiliated with the International Brotherhood of Teamsters. Local 810’s agreement with H. Berlind had an expiration date of April 18, 1972.

Hudson Housewares Cbrp. was also in the business of wholesale distribution of household goods. Its principal place of business was Brooklyn and its thirty-one warehouse employees were represented by Local 222, affiliated with the International Production, Service and Sales Employees Union. Local 222’s agreement with Hudson Housewares was set to expire on March 15, 1972.

In September 1971 H. Berlind was purchased by Greenman Brothers, Inc. Greenman Brothers then purchased Hudson Housewares in December 1971. From the outset, Greenman Brothers intended to consolidate the two operations in a new facility at Hicksville, New York, about 40 miles from the Brooklyn location. In anticipation of the consolidation, Hudson Housewares was renamed Hudson Berlind Corp. in January 1972.

Since Local 222 represented a larger number of warehouse employees than Local 810, Hudson Berlind decided to recognize Local 222 as the bargaining representative of its warehouse employees at the new Hicksville facility. Without notifying Local 810 of the planned consolidation, Hudson Berlind opened negotiations with Local 222. On January 31, 1972, they signed a three-year agreement effective on March 15, 1972, which recognized Local 222 as the bargaining representative of warehouse-men at Hudson Berlind facilities in the New York metropolitan area. The agreement contained a union-security clause which required all warehouse-men to join Local 222 within thirty days of their hiring.

From January 31 to March 10 Hudson Berlind transferred its operation from Brooklyn to Hicksville. During this period, ten of the employees who had worked in Brooklyn left the employ of Hudson Berlind and were replaced by ten new members. Thus, when the transfer to Hicksville was complete on March 10, twenty-one of the thirty-one warehousemen at Hicksville had previously been Local 222 members at Brooklyn.

Meanwhile, in February Local 810 gave notice that it wished to renegotiate its contract. The former owner of H. Berlind informed the union for the first time that Greenman Brothers had purchased the company and would soon be in touch with Local 810’s officers. At a meeting held on February 24, Greenman Brothers’ attorneys told Local 810’s president that Greenman Brothers planned to close down the Floral Park operation and move it to Hicksville and that Local 222 would represent the ware-housemen there. The attorneys agreed to send Local 810 a copy of the Local 222 agreement and a seniority list of the Brooklyn employees.

Subsequently on March 15 Local 810 filed the unfair labor practice charges at issue here. Local 810 also solicited authorization cards from former Hudson Houseware employees who had transferred to Hicksville and on April 7 filed a representation petition with the Board. This petition has been held in abeyance pending disposition of the unfair labor practice charges.

At the end of May operations at Floral Park were terminated, but Hudson Berlind offered employment at Hicks-ville to all the warehousemen who had worked at Floral Park. All ten of the Floral Park warehousemen accepted employment at Hicksville, beginning in the first week of June.

Overruling the recommended decision of its administrative law judge, a three-member panel of the National Labor Relations Board found that Hudson Berlind violated the Act by recognizing Local 222 as the bargaining agent of the Hicksville warehousemen. The Board initially held that the Hicksville facility was not a relocation or an accretion of the Brooklyn bargaining unit, but rather a new bargaining unit. The Board then found that there was a “real question” concerning which union would be chosen by the Hicksville warehousemen to represent them at the time the contract of January 31 was signed and that Berlind had an obligation under the decision of Midwest Piping & Supply Co., 63 N.L. R.B. 1060 (1945), to remain neutral as between the unions until the representation question is settled. Hudson Berlind’s failure to remain neutral was held to be unlawful aid to Local 222 in violation of § 8(a) (2) of the Act, 29 U.S.C. § 158(a)(2). The inclusion of the union-security clause in the contract was further held to violate §§ 8(a)(1) and (a)(3) of the Act, 29 U.S.C. §§ 158(a)(1), (a)(3).

The Board ordered Hudson Berlind to cease and desist from aiding Local 222 and from requiring membership in Local 222 as a condition of employment in violation of the Act. Hudson Berlind was also ordered to withdraw recognition of Local 222 as bargaining agent of its Hicksville employees and to return to its warehousemen, except those who joined Local 222 prior to the January 31 agreement, the money paid by them or withheld from them for union dues and initiation fees.

We realize that the consolidation of separate operations can lead to difficult problems of labor relations for employers, see, e. g., the situation in Wheland Co., 120 N.L.R.B. 814 (1958), enforcement denied, 271 F.2d 122 (6th Cir. 1959). Be that as it may, we find substantial evidence to support the Board’s finding that there was a real question concerning representation when Hudson Berlind signed the agreement with Local 222 and its conclusion that the actions Hudson Berlind chose to take violated the Act. Hudson Berlind does not quarrel with the principle of Midwest Piping, which we have approved on several occasions, see, e. g., N.L.R.B. v. Midtown Service Co., 425 F.2d 665 (2d Cir. 1970); Welch Scientific Co. v. N.L.R. B., 340 F.2d 199 (2d Cir. 1965); N.L. R.B. v. National Container Corp., 211 F.2d 525 (2d Cir. 1954), but argues that the principle does not apply in this case. We cannot agree.

First, the Board found that Hicksville was a separate bargaining unit and not a relocation or accretion of the Brooklyn unit. We have previously said that the Board has “wide discretion in determining the appropriate bargaining unit.” N.L.R.B. v. Masters-Lake Success, Inc., 287 F.2d 35, 36 (2d Cir. 1961). See also Packard Motor Car Co. v. N.L.R.B., 330 U.S. 485, 491-492, 67 S.Ct. 789, 91 L.Ed. 1040 (1947). There is substantial evidence to support the Board’s finding that Hicksville was a separate unit since it was a consolidation of two previously separate units and some distance away from each of them. See General Electric Co., 170 N.L.R.B. 1272 (1968); National Carloading Corp., 167 N.L.R.B. 801 (1967); Kroger Co., 155 N.L.R.B. 546 (1965). Because Hicksville was a separate bargaining unit, the cases which Hudson Berlind cites that rely on a presumption of continuing majority status for a previously certified union within the same bargaining unit are not on point. See N.L.R.B. v. Swift & Co., 294 F.2d 285 (3rd Cir. 1961); Harpeth Steel, Inc., 208 N.L.R.B. No. 84 (1974). See also N.L.R.B. v. Midtown Service Co., supra.

Second, there is substantial evidence to support the Board’s finding that there was a real question concerning representation at the time of the signing of the contract. See Empire State Sugar Co. v. N.L.R.B., 401 F.2d 559 (2d Cir. 1968); Fruehauf Trailer Co., 162 N.L.R.B. 195 (1966); Purolator Products, Inc., 160 N.L.R.B. 80 (1966); Schreiber Trucking Co., 148 N.L.R.B. 697 (1964). Hudson Berlind argues that there was no real question because the Local 222 unit was larger than the Local 810 unit. It is true that Local 222 had 31 members in Brooklyn and Local 810 had only ten members at Floral Park, but this numerical superiority was not sufficiently predominate to remove any real question concerning representation. Cf. National Carloading Corp., supra ; Purolator Products, Inc., supra. The Hicksville facility was about 40 miles from the Brooklyn warehouse and it was not clear how many employees would choose to transfer from Brooklyn and Floral Park to Hicksville when Hudson Berlind signed the agreement with Local 222. Cf. Cooper Thermometer Co. v. N.L.R.B., 376 F.2d 684 (2d Cir. 1967). There was, therefore, no assurance that Local 222’s predominance would continue.

Hudson Berlind also argues that there was no real question concerning representation because Local 810 made no demand to represent the Hicksville employees, but the Board found that Local 810’s officers did not learn of the planned consolidation until after Hudson Berlind signed the agreement with Local 222 on January 31, 1972. One can hardly expect Local 810 to react to a situation which it did not know about. Cf. N.L.R.B. v. Burke Oldsmobile, Inc., 288 F.2d 14, 16 (2d Cir. 1961). We, therefore, cannot set aside the Board’s finding on this issue.

Since there was a real question concerning representation at the time Hudson Berlind entered into the agreement with Local 222, the Board properly found that Hudson Berlind’s conduct violated § 8(a)(2) of the Act. Empire State Sugar Co. v. N.L.R.B., supra. The Board was also correct in finding that the presence of a union-security clause in the agreement violated §§ 8(a)(1) and (a)(3). N.L.R.B. v. Fiore Brothers Oil Co., 317 F.2d 710 (2d Cir. 1963); N.L.R.B. v. Revere Metal Art Co., 280 F.2d 96, 100 (2d Cir.), cert, denied, 364 U.S. 894, 81 S.Ct. 225, 5 L.Ed.2d 189 (1960). Accordingly, a judgment will be entered enforcing the Board’s order.

      . The Board held in the alternative that since the agreement signed with Local 222 dealt with the terms of empiloyment of Hicksville employees before any of them worked there, it was a prehire contract in violation of §§ 8(a) (1) and (a) (2) of the Act. Since we enforce the Board’s order on the grounds mentioned in the text, there is no need for us to determine the validity of this alternative holding.

      . Hudson Berlind also argues that we cannot enforce the Board’s order because the Board never found that it was a successor to II. Berlind and therefore it had no duty to bargain with Local 810. about the terms of employment at Hicksville. Hudson Berlind relies on cases which hold that an employer who is a successor must recognize and bargain with the union that represented his predecessor’s employees. See, e. g., N.L.R.B. v. Burns International Security Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972). This reliance is misplaced. The Board did not hold that Hudson Berlind had a duty to recognize Local 810 but rather that it had a duty not to recognize any union until the representation question at Hicksville was settled.


author: KOELSCH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Gary Lee MACK, Defendant-Appellant.
    No. 73-1827.
    United States Court of Appeals, Ninth Circuit.
    March 29, 1974.

      Gary S. Goodpaster (argued), Robert -,W. Ripley, Jr., Federal Defenders, San Diego, Inc., San Diego, Cal., for defendant-appellant.
    Jeffrey F. Arbetman, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-ap-pellee.
    Before CHAMBERS and KOELSCH, Circuit Judges, and LYDICK, District Judge.

       The Honorable Lawrence T. Lydick, United States District Judge for the Southern District of California, sitting by designation.

   OPINION

KOELSCH, Circuit Judge:

Defendant Mack appeals from the denial of his motion, pursuant to Rule 35, Fed.R.Crim.P., to correct sentence.

The relevant facts are these: In March, 1972, defendant was indicted for conspiracy to possess with intent to distribute (Count 1) and possessing with intent to distribute (Count 2) amphetamine sulphate tablets in violation of 21 U.S.C. §§ 846 and 841(a)(1). On May 16, 1972, he was arraigned for plea and entered a plea of guilty to the second count, after due compliance by the court with the requirements of Rule 11, Fed. R.Crim.P., including advice that if imprisonment was imposed, “the court can and will impose upon you a special two-year parole term. . . . ”

On June 21, 1972, defendant was arraigned for sentence. The court, after affording both defendant and his attorney an opportunity to speak, sentenced defendant to “imprisonment for a term of three years,” but did not impose the parole term. Later the same morning, after defendant and his attorney had left the courtroom, the Assistant United States Attorney inquired whether the court would impose the parole term required by the statute. The court responded :

“There should have been a special term of parole imposed on Mr. Mack. Yes, I will impose such a special term of parole and notify him of the fact that I have done so.”

The court then directed a probation officer to “go to Mr. Mack now and inform him of the fact that I have imposed upon him a special two-year parole term?” The written judgment of conviction, signed by the district judge and dated June 21, 1972, fixes the defendant’s imprisonment at three years and, in addition, imposes the special parole term.

On April 12, 1973, defendant moved, under Rule 35, for an order vacating and correcting the judgment to provide a one-year imprisonment and the two year parole term, thereby “carving” the latter out of the prison term imposed in his presence.

On April 23, 1973, the motion was heard with the defendant present. The district judge, rejecting defendant’s contention, declared that he considered the sentence in the written judgment to be the “final pronouncement of sentence,” and that it conformed to the one which he had intended to impose orally in defendant’s presence.

The minutes of the hearing recite that the Rule 35 motion was denied. But the transcript does not bear this out. What the transcript does show is that the district judge, without granting the motion or vacating the prior sentence, thereupon “repronounce(d) the sentence”— three years’ imprisonment and a two-year special parole term.

In limine we are confronted with the government’s objection that the motion was untimely.

Rule 35 provides:

“The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. The court may reduce sentence within 120 days after the sentence is imposed, or within 120 days after receipt [of a] dismissal of appeal it

In the government’s view, based upon its interpretation of Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), the formalized judgment and sentence are not illegal but simply are imposed in an illegal manner because the portion of its specifying the mandatory parole term was imposed in defendant’s absence, contrary to the provision of Rule 43. Pointing out that timely filing of a Rule 35 motion to correct sentence “illegally imposed” is jurisdictional (United States v. Robinson, 457 F.2d 1319 (3d Cir. 1972), United States v. Marchese, 341 F.2d 782, 788 (9th Cir. 1965), cert, denied, 382 U. S. 817, 86 S.Ct. 41, 15 L.Ed.2d 64). the government argues that the dismissal must be sustained.

The defendant, on the other hand, argues that the three-year sentence imposed in his presence on June 21, 1972, was itself an “illegal” sentence and that the subsequent addition of the parole term in his absence cannot serve to remove the illegality. Thus defendant contends that the maximum to which he could have been resentenced was one year imprisonment and two years special parole, and that therefore the sentence “re-pronounced” on April 23, 1973, violated the Double Jeopardy Clause.

We conclude that defendant’s double jeopardy claim is properly raised by his Rule 35 motion regardless of which characterization — the defendant’s or the government’s — we give the sentence. If defendant is correct in his contention that the sentence “re-pronounced” on April 23, 1973, constituted double jeopardy, then it is equally apparent that the addition of the special parole term after he had commenced serving his sentence and the entry of the increased sentence in the written judgment of June 21, 1972, is illegal for the same reason.

The proposition is well settled that a sentence which violates the Double Jeopardy Clause is an illegal sentence which can be challenged at any time. Hill v. United States, supra, 368 U.S. at 430, 82 S.Ct. 468. Thus, even if, as the government contends, the Rule 35 motion were not timely to challenge the violation of defendant’s Rule 43 right to be present at sentencing, it would nevertheless be timely to challenge illegality of the sentence on constitutional grounds.

To determine whether the district court had jurisdiction to hear the motion, we must determine whether the increase embodied in the written judgment violated the Double Jeopardy Clause. We therefore turn to defendant’s constitutional contention.

Defendant concedes, as he must, that a sentence is illegal which omits a term required to be imposed by statute and that in some instances the later imposition of a more severe legal sentence provided by statute does not constitute double jeopardy. United States v. Bozza, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947); Orrie v. United States, 302 F.2d 695 (8th Cir. 1962); Mathes v. United States, 254 F.2d 938 (9th Cir. 1958).

However, defendant urges this is not such an instance. He argues that the illegal sentences initially imposed in Boz-za, Orrie, and Mathes were less than the statutorily mandated minimum, so that the defendants could not be sentenced to a legal sentence without an increase in the aggregated punishment, whereas in his case the illegal sentence can be transformed into a legal one by carving the special parole term out of the term of imprisonment without increasing the total number of years to be served.

We do not find Bozza so distinguishable. The Court there stated:

“The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner. See King v. United States, 69 App.D.C. 10, 15, 98 F.2d 291, 296. In this case the court ‘only set aside what it had no authority to do and substitute[d] directions required by the law to be done upon the conviction of the offender.’ In re Bonner, supra, 151 U.S. 242, at 260, 14 S.Ct. 323, 38 L.Ed. 149. It did not twice put petitioner in jeopardy for the same offense. The sentence, as corrected,

“2. . . . But here the petitioner had not suffered any lawful punishment until the court had announced the full mandatory sentence of imprisonment and fine.”
imposes a valid punishment for an offense instead of an invalid punishment for that offense.” 330 U.S. at 166-167, 67 S.Ct. at 649.

Applying the Bozza rationale to this case, we conclude that the defendant did not receive a legal sentence until the district court corrected the inadvertent omission of the special parole term, thereby “imposing a valid punishment for an offense instead of an invalid punishment for that offense.” United States v. Thomas, 356 F.Supp. 173 (E. D.N.Y.1972), aff’d without opinion, 474 F.2d 1336 (2d Cir. 1973). The sentence embodied in the written judgment does not violate the Double Jeopardy Clause, and may not on that ground be attacked by a Rule 35 motion.

However, this question remains: Does the imposition of the parole term in defendant’s absence so taint the 1972 sentence as to constitute the whole of it illegal and to insulate defendant’s motion from the 120-day limitation of Rule 35? We think the answer is “yes.” However, in so ruling, we emphasize that we need not and do not decide whether a sentence imposed in toto in the absence of a defendant is “illegal” or merely one imposed in an illegal manner. In other words, we decide that under the peculiar circumstances of this case, the defendant’s sentence may not be transformed into one imposed in an “illegal manner” by the subsequent addition in his absence of the parole term. The contrary ruling, we think, would likely unfairly prejudice a defendant who, having ostensibly been given a full sentence in open court, is not on notice of a subsequent increment.

The judgment is reversed, and the cause is remanded to the district court with directions to grant defendant’s motion to vacate the illegal sentence and reimpose sentence upon defendant consistent with this opinion.

      . 21 U.S.C. § 841(b) (1) (B) mandates the imposition of a “sxxecial parole term” (see 841(c)) in addition to any term of imprisonment imposed for violation of 841(a) (1).

      . Rule 43, Fed.R.Crim.P.:
      “Tlie defendant shall be present a.t the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules. ...”

      . In fact, the June 21, 1972, sentence was the basis for defendant's motion to the district court. Although the parties now argue the effect of the April 23 resentencing, we consider the earlier sentence the proper basis for defendant’s constitutional claim, because, as indicated below, we consider the April 23 sentence a nullity (see n. 4, infra).

      . We reject defendant’s contention that the special parole term should be carved out of the term of imprisonment. 21 U.S.C. § 841(c) states:
      “A special parole term provided for in this section or section 845 of this title shall be in addition to, and not in lieu of, any other parole provided by law.”

        We agree with the court in United States v. Thomas, 356 F.Supp. 173, 174 (E.D.N.Y. 1972) :
      “Thus Congress contemplated two periods of parole in every sentence, one as part of the basic sentence, and one in the form of a ‘special parole term.’ Treating the special parole term as a substitute for part Tif the original sentence of imprisonment would be contrary to the purpose shown by the statute.”

      . The government contends that the “re-pronouncement” of defendant’s sentence during the April 23, 1973, hearing remedies any possible procedural defects in the original sentence. We disagree. The district court denied defendant’s motion for correction of sentence, thereby leaving the June 21, 1972, sentence in effect. The re-pronouncement of the sentence was a nullity. Having failed to vacate the prior sentence, the court on April 23 could not possibly afford defendant his right to be present at the actual imposition of the special parole term. We consider the procedural safeguards afforded defendant at the April 23, 1973, hearing pro forma only, and therefore inadequate to replace the real substance of those safeguards lost when a portion of the sentence he is actually serving was entered in his absence on June 21, 1972.

      . The issue is unclear and has not been decided since the 1966 amendment of Rule 35, which first distinguished the two types of sentences for which relief could be provided. See Wright, Federal Practice and Procedure : Criminal § 585, at 567. Cases prior to Hill had considered such sentences “illegal.” Cook v. United States, 171 F.2d 567 (1st Cir. 1948).

      . While the court sent someone to inform defendant of the increase in his sentence, and defendant has not contended that he was not then informed, nevertheless it does not appear on the face of the record on appeal that defendant learned of the increase in his sentence within 120 days after entry of judgment.

      . Defendant may not be resentenced to a prison term of more than three years. Walsh v. United States, 374 F.2d 421 (9th Cir. 1967).


author: PER CURIAM.

text:
    Edward VOYTOVICH, Plaintiff-Appellee, v. BANGOR PUNTA OPERATIONS, INC., Defendant-Appellant.
    No. 73-1724.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 8, 1974.
    Decided April 3, 1974.

      S. Stuart Eilers, Thompson, Hiñe & Flory, Cleveland, Ohio, for defendant-appellant.
    David G. Davies, Arter & Hadden, Cleveland, Ohio, for plaintiff-appellee.
    Before WEICK and LIVELY, Circuit Judges, and ROSENSTEIN, Senior Judge, Customs Court.

       The Honorable Samuel M. Bosenstein, Senior Judge, United States Customs Court, sitting by designation.

   PER CURIAM.

Bangor Punta Operations, Inc. [Bangor Punta] appeals from an order of the District Court to the effect that Edward Voytovich is entitled to rescission of his contract to purchase a boat and to recover the purchase price of $19,424.84, or in the alternative to recover damages for breach of warranty in the amount of $10,000. We vacate the order with respect to rescission, and affirm the judgment against Bangor Punta in the amount of $10,000, with interest and costs.

Bangor Punta is in the business of building boats. Voytovich is an amateur sailor who was attracted to a 33-foot Ul-richsen cruiser by reading a Bangor Punta brochure which stated in part that the boat was built for rugged cruising beyond the 12-mile limit, that the boat was of first-class seaworthiness, and that it had a unique response to “white water.”

Voytovich purchased the boat from Bangor Punta’s dealer, Zucker Marine, Inc. The boat was manufactured by Luhr’s, Inc., a division of Bangor Punta has assumed the responsibility for Luhr’s design and manufacture.

The District Court found that the words in the brochure were an express warranty, and that Voytovich relied on this statement when he contracted to purchase the boat through the marine broker, Zucker Marine, Inc.

Shortly after delivery the boat was severely damaged in a voyage on Lake Erie. Voytovich sued both Zucker and Bangor Punta, seeking either a rescission of the sale or damages. At the close of plaintiff’s case the District Court dismissed the dealer Zucker. Voytovich did not appeal this dismissal. At the close of all the evidence the Court, sitting without a jury, found in favor of Voytovich, who was given the option of rescinding the sale and recovering the purchase price, or in the alternative recovering $10,000 in damages.

The District Court found as matters of fact that the seas were not excessively dangerous during the voyage and that Voytovich’s seamanship was adequate. The Court also found:

13) The experts generally agreed that the damage they saw and described was caused by an inboard and outboard flexing of the hull in the mid-ships area, allowing the deck to pull loose from the hull and settle, the structures to deform and crack. The slapping and pounding and wave peculiarity allowed the hull to sag and hog on the crests and troughs of the seas.
15) The experts likewise agreed generally that there was inadequate transverse strength in the aft two-thirds of the hull at the sheer strakes, and that sound boat building practice requires support members for the deck and bridge in that area.
16) The damage was proximately caused by the excessive flexibility of the hull in responding to normal, foreseeable and expected conditions.
17) The reasonable cost of repairs was $9,487. Notwithstanding the repairs done, the “Rosalie Vee II” still has the inherent excessive flexibility, and is unsuited for Lake Erie operations or other rugged cruising.

Bangor Punta raised three points on appeal. First, it claimed that rescission was available only against the dealer Zucker, who was the seller of the boat; and that Voytovich should not be able to rescind or recover damages against a manufacturer with whom Voytovich had no contractual relationship. Second, Bangor Punta contended that the measure of damages awarded by the District Court was erroneous; and third, Bangor Punta contended that the District Court erred in granting relief in the alternative.

As to Bangor Punta’s first assertion that Voytovich could not revoke his acceptance against the manufacturer, Voy-tovich argues that rescission is supported by the District Court’s finding of privity between Voytovich and Bangor Punta or by the violation of an express warranty. The findings of privity were based on certain direct dealings between Voytovich and Bangor Punta. Voyto-vich had visited the factory during construction of the boat and had certain special features added to the boat (although these special features had nothing to do with the hull design).

It is clear that the applicable Ohio statute allows a buyer to revoke an acceptance. (The statute does not speak in terms of rescission.) Ohio Revised Code § 1302.66, in relevant part, provides :

(A) The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it:
(2) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.

Bangor Punta argues that this statute allows revocation only against the seller, and that Voytovich could revoke only against Zucker. Clearly, under this statute Voytovich cannot revoke against Bangor Punta; Bangor Punta was not the seller. The question is whether he derives a right of revocation from some other source of law.

Under Ohio law it is clear that a purchaser who relies on the express warranty of a manufacturer in purchasing goods, and suffers injury or loss of bargain, may directly sue the manufacturer. Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, 147 N.E.2d 612 (1958), and Inglis v. American Motors Corp., 3 Ohio St.2d 132, 209 N.E.2d 583 (1965). After these cases there can be no dispute that Voytovich had a right to sue the manufacturer, and to recover damages for breach of express warranty.

However, we have been unable to find any case allowing a purchaser to rescind a sale against a manufacturer for a breach of express warranty. No such case has been cited to us by appellee. In our opinion, in order to be entitled to the remedy of rescission, there must be a buyer-seller relationship, and that relationship is absent in this case. Voytovich’s only contractual relationship was with Zucker. Thus, we are constrained to vacate the rescission award.

Appellant’s second contention is that the damage portion of the judgment was unsupported by any evidence. We disagree. Ohio Revised Code § 1302.88(B) provides:

The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.

Appellant claims that the only evidence on damages was a statement by Voytovich that he would be lucky to realize $10,000 on the sale of the boat. However, it is clear that this testimony was not the basis of the damage award. In its conclusions of law the District Court found:

Under the facts found herein, the vessel in question still has the inherent probability of flexing and sustaining damage, and as such has the probability of again sustaining damage in the amount of $10,000, which is, therefore, a fair measure of its loss in value.

We think this finding is supported by the evidence and meets the test of the statute. The cost of repairs for the initial damage was $9,487, and the experts found it was susceptible to recurrence of the same type of damage. Thus a $10,000-estimate for future damages is clearly reasonable. At the time of delivery and at all times afterward the boat was susceptible to this type of damage. Its value was thus that much less than its warranted value. The evidence would have supported a much larger award.

The judgment of $10,000, with interest and costs, is affirmed. The alternative award of rescission is vacated.


author: CELEBREZZE, Circuit Judge.

text:
    CITIZENS TO PRESERVE OVERTON PARK, INC., et al., Plaintiff-Appellant, v. Claude S. BRINEGAR, Secretary, United States Department of Transportation, Defendant-Appellant, and Charles W. Speight, Commissioner, Tennessee Department of Highways, Defendant-Appellee.
    Nos. 73-1668, 73-1669.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 30, 1974.
    Decided April 3, 1974.
    John W. Vardaman, Jr., Washington, D. C., for plaintiffs-appellants; Williams, Connolly & Califano, Washington,

      D. C., Charles F. Newman, Burch, Porter & Johnson, Memphis, Tenn., on brief.
    Judith S. Feigin, Dept, of Justice, for Federal appellant; Irving Jaffe, Acting Asst. Atty. Gen., Leonard Schaitman, Atty., Dept, of Justice, Washington, D. C., on brief.
    J. Alan Hanover, Sp. Counsel, Memphis, Tenn., for defendant-appellee; David M. Pack, Atty. Gen., of Tenn., Hanover, Walsh, Barnes & Jalenak, Memphis, Tenn., on brief.
    Before WEICK, CELEBREZZE and PECK, Circuit Judges.
   CELEBREZZE, Circuit Judge.

This litigation began in 1969, when Secretary of Transportation, John A. Volpe, approved a 3.7 mile extension of Interstate Highway 40 through Memphis, Tennessee. Four thousand feet of this project was to cut through Overton Park, a public wooded area in downtown Memphis. Citizens to Preserve Overton Park, Inc., organized to oppose the Secretary’s action. They challenged his approval as contrary to § 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f). Section 4(f) states that “the Secretary [of Transportation] shall not approve any program or project which requires the use of any publicly owned land from a public park”, among other areas,

“unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park . . . resulting from such use.”

The District Court granted summary judgment for defendants, 309 F.Supp. 1189 (W.D.Tenn.1970). This decision was affirmed by this court with one judge dissenting. 432 F.2d 1307 (6th Cir. 1970). The Supreme Court reversed, holding that the District Court must review the full administrative record before the Secretary at the time of his decision in order to determine whether the Secretary “could have reasonably believed that in this case there are no feasible alternatives or that alternatives do involve unique problems” and whether the Secretary’s decision “was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” 401 U.S. 402, 415-416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).

On remand, 335 F.Supp. 873, the District Court, having conducted a full hearing and having probed the prior administrative proceedings, concluded that the Secretary had made a proper decision as to the design of the proposed route and had only to determine whether the Over-ton Park route was the sole feasible and prudent route. Thus, the Court remanded the case to the Secretary “only for the purpose of making a route determination in compliance with § 4(f) of the Department of Transportation Act of 1966 as that provision has been construed by the Supreme Court”. The Court enjoined both the federal and state defendants from engaging in activities which would advance construction of the Overton Park route.

Secretary Volpe ordered a full review of the decision thereafter. Because of legislation passed and regulations issued after his initial approval of the route, the Secretary ordered the preparation of an environmental impact statement in accordance with § 102(C) of the National Environmental Policy Act of 1969, and the holding of a public hearing in compliance with § 5(b) of Policy and Procedure Memorandum 20-8, promulgated under the 1970 Federal-Aid Highway Act. After a searching administrative review of the matter, Secretary Volpe refused to approve the Overton Park route on January 18,1973. He stated that the National Environmental Policy Act, the Federal-Aid Highway Act, and the noise standards set by the Federal Highway Administration, as well as the Supreme Court’s interpretation of § 4(f), had weighed in his reconsideration of the matter:

“On the basis of the record before me and in light of guidance provided by the Supreme Court, I find that an Interstate highway as proposed by the State through Overton Park cannot be approved. On that record I cannot find, as the Statute requires, and as interpreted by the courts, that there are no prudent and feasible alternatives to the use of parkland nor that the broader environmental protection objectives of the NEPA, and the Federal-Aid Highway Act have been met, nor that the existing proposal would comply with FHWA standards on noise.”

The Secretary noted “possible alternatives which the State of Tennessee may wish to consider,” without endorsing a particular one or rejecting the “no build” alternative.

Commissioner Charles W. Speight, of the Tennessee Department of Highways (hereafter the State), responded to this rejection on February 1, 1978, by petitioning the District Court for an order requiring the Secretary “to comply with terms of remand order or, in the alternative, to dissolve injunction as to state defendant.” The State argued that the Secretary had not made a “route determination” as required by the Court’s original remand order. The State also argued that the Secretary had gone beyond the terms of the remand order in reconsidering the highway’s design and that the Secretary had failed to discharge his 49 U.S.C. § 1653(f) obligation to make a route determination. The crux of the State’s objection was that it was entitled either to proper approval of the Overton Park route or to a formal statement of what other route is prudent and feasible, along with specific findings of any other legal shortcomings of the Overton Park route. The State’s fear was that the Secretary’s rejection of the Overton Park route left it with no obvious direction — with no alternative proposal guaranteed of federal funding.

On May 1, 1973, the District Court granted the relief requested by the State. The Court found that the Secretary had not made the route determination required by his January 5, 1972 remand order. He therefore ordered the new Secretary of Transportation, Claude S. Brinegar, to perform several acts. First, the Secretary must either find unequivocally that there is no feasible and prudent alternative to the use of Over-ton Park land for interstate 40 (thus amounting to approval of that route), or state that there is at least one feasible and prudent alternative route and specify it, so that the court can review the correctness of that decision. Second, the Secretary must find and state for the record, if true, that the Overton Park route would violate the National Environmental Policy Act of 1969, and 1970 Federal-Aid Highway Act, or the noise standards of the Federal Highway Administration, and at least designate the respects in which such provisions would be violated by the construction of this project. Third, the Secretary need not reconsider approval of the Overton Park route (the putative rejection of January 18, 1973, having been found unlawful), but he may reconsider the design decision (a separate decision from the question of approving the park route in any form). Fourth, the Secretary must bear the burden of obtaining any additional information, as the District Court discharged the State of Tennessee from any further responsibility to produce information for the Department of Transportation. Finally, the Secretary must do all these things within 45 days.

In separate appeals, consolidated for review by this court, Citizens to Preserve Overton Park and the Secretary of Transportation attack the District Court’s decision. The Secretary argues that the District Court’s interpretation of § 4(f) is “wholly foreign to the statutory scheme Congress has enacted to govern the use of federal funds in highway construction.” Whereas the District Court held, and the State urges, that § 4(f) requires a formal statement of findings and reasons from the Secretary for rejecting the Overton Park route, the Secretary claims that under § 4(f) he is merely foreclosed from approving a proposal which would take parklands so long as he is not convinced that there is no prudent and feasible alternative to the use of such lands. The Secretary contends that upon such rejection, § 4(f) does not require anything more of him and that he need not affirmatively find that a particular feasible and prudent alternative exits. These differing interpretations of § 4(f) embody quite different conclusions as to what the Secretary must do to reject a state proposal for federal highway construction funds.

Our resolution of these conflicting statutory interpretations first requires a determination of the Secretary’s scope of authority in considering proposals before him. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). We find that the Secretary properly construed his authority. It is clear to us that the statute is designed to require the Secretary to scrutinize proposed highways for the protection of park lands, and places no affirmative duty on the Secretary to specify any particular route as a feasible and prudent alternative to the proposed route.

The State’s main contention is that the Secretary’s decision is proeedurally inadequate because his failure to specify an alternate route prohibits adequate judicial review of his decision. We do not agree. As noted in the Overton Park ease by the Supreme Court, formal findings are not required by either the Department of Transportation Act or the Federal-Aid Highway Act. 401 U.S. at 417, 91 S.Ct. 814. Here, .the Secretary made suggestions as to possible alternative routes. A specific finding as to a particular route is not required. Thus, the Secretary’s explanation of his action is not so vague as to frustrate judicial review. The validity of the Secretary’s action must stand or fall on the propriety of that finding judged by the appropriate standard of review. See Camp v. Pitts, 411 U.S. 138, 142-143, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973).

The burden of choosing the route does not, as the District Court held, lie with the Secretary. The Secretary only approves or disapproves a particular route. Township of Hopewell v. Volpe, 446 F.2d 167, 171 (3d Cir. 1971). The Federal-Aid Highway Act, 23 U.S.C. § 101 et seq., prescribes the procedure to be followed in obtaining federal funds. 23 U. S.C. § 103(e) provides that

“The routes of [the Interstate] system * * * shall be selected by joint action of the State highway departments of each State and the adjoining States, subject to the approval by the Secretary. * * * ”

The first step in initiating a request for federal funds is provided in § 105(a):

“As soon as practicable after the ap-portionments for the Federal-Aid systems have been made for. any fiscal year, the State highway department of any State desiring to avail itself of the benefits of this chapter shall submit to the Secretary for his approval a program or programs of proposed projects for the utilization of the funds apportioned.”

Following approval of the project plans are to be submitted to the Secretary:

“* * * the State highway department shall submit to the Secretary for his approval, as soon as practicable after program approval, such surveys, plans, specifications, and estimates for each proposed project included in an approved program as the Secretary may require.” 23 U.S.C. § 106(a).

Thus, it is incumbent on the state to come forward with a particular route. Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1328 (4th Cir. 1972), cert, denied, 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261; Lathan v. Volpe, 455 F.2d 1111, 1115 (9th Cir. 1971); Township of Hopewell v. Volpe, 446 F.2d 167, 171 (3rd Cir. 1971). If one route is disapproved, the burden is on the state to submit another proposal to the Secretary and at that time the Secretary would be required either to approve or disapprove the new proposal.

We hold that the Secretary has at this point complied with his duties under the statute. The order of the District Court remanding the ease to the Secretary is therefore reversed.

      . The statute is drafted in a negative manner and prohibits the Secretary from approving a proposed route unless he finds that no feasible and prudent alternative exists. Had Congress intended that the Secretary specify an alternate route it would have been an easy matter to insert a requirement in the statute. However, the statutory requirements are minimal. In addition to the clear language of the statute, the legislative history of the Act reveals the primary purpose of the statute to be the protection of vital park lands, parks, historic sites and similar areas. U.S.Code Congressional and Administrative News, pp. 3482, 3499-3500, 90th Congress, 2d Session (1968). The language of 23 U.S.C. § 188 (Federal-Aid Highway Act of 1968) was amended to have the identical language as 49 U.S.C. § 1653(f). U.S. Code Congressional and Administrative News, pp. 3482, 3538-39, 90th Congress, 2d Session (1968).


author: ROSENN, Circuit Judge.

text:
    UNITED STATES of America v. Elaine ALLEN and James Liles a/k/a Junior. Appeal of James LILES.
    No. 73-2026.
    United States Court of Appeals, Third Circuit.
    Submitted under rule 12(6) March 15, 1974.
    Decided April 10, 1974.
    Barney B. Welsh, Ominsky, Koral & Welsh, Philadelphia, Pa., for appellant.
    Paul E. Holl, Asst. U. S. Atty., Philadelphia, Pa., Robert E. J. Curran, U. S. Atty., for appellee.
    Before ALDISERT, GIBBONS and ROSENN, Circuit Judges.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

The sole issue raised on this appeal is whether the district court committed error in imposing sentence on the defendant following receipt of information contained in a letter submitted by the prosecution after trial, and after hearing testimony at the time of sentencing relating to offenses charged in another pending indictment.

The defendant, James Liles, was convicted on Counts III and IV of a four count indictment tried to the court. Count III charged him with knowingly aiding, abetting, counseling, inducing and procuring the distribution of heroin in violation of 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 2. Count IV charged him with unlawfully conspiring with his co-defendant to violate 21 U.S.C. § 841(a)(1), in violation of 21 U.S.C. § 846.

Two days before the scheduled date for sentencing the prosecution delivered a letter to the trial judge, with a copy to defendant’s counsel, stating that the Government would recommend that Liles be given a “substantial term of imprisonment.” The letter informed the judge that Liles “is and has been a major non-addict pusher of heroin, dealing primarily in bundle quantities on a substantial basis in the West Philadelphia area.” It asserted that “the defendant’s recent . . . conviction in the Philadelphia Common Pleas Court for the sale of heroin, which presumably will be reflected in the pre-sentence report, supports this allegation.”

In support of its allegation in the letter that defendant was a major narcotics pusher, the prosecution at sentencing invited the trial judge’s attention to certain testimony at trial relating to defendant’s bundle sales of heroin. In further support of its allegation, the prosecution also called Police Officer La-guins, assigned to the Philadelphia Drug Enforcement Administration Task Force, who testified concerning his role in several alleged purchases of drugs involving Liles. These offenses were the subject of another indictment then pending in the same district court before another judge. Defense counsel did not interpose any objection to the taking of this testimony and extensively cross-examined Officer Laguins.

On October 19, 1973, Liles was sentenced on Count III to imprisonment for a period of three years, the statutory sentence for this offense being imprisonment for not more than fifteen years and a fine of $25,000, or both. The sentence was to run consecutively with the term of imprisonment which the defendant was then serving under a sentence of the Court of Common Pleas of Philadelphia County. Liles was made eligible for parole at such time as the Board of Parole might determine pursuant to 18 U.S.C. § 4208(a)(2). In addition to the sentence of imprisonment, the court imposed a special parole term of five years to follow the sentence of imprisonment on this count. The court suspended sentence on Count IV and placed the defendant on probation for a period of three years to follow the expiration of the special parole term imposed on Count III.

On appeal, Liles does not attack the underlying conviction. He contends, however, that his sentence was illegal. First, he argues that the unsubstantiated statement in the letter violated his constitutional rights under United States v. Weston, 448 F.2d 626 (9th Cir. 1971). Second, he contends that the presentation of testimony at the time of sentencing as to other offenses violated his constitutional rights to due process because he did not have an opportunity to prepare an adequate defense or to call rebuttal witnesses. After careful consideration of the briefs of counsel and the record in this case, we find both contentions without merit and we affirm.

As to his first contention, Liles contends that under United States v. Weston, supra, the sentencing judge could not consider the uncorroborated statement contained in the prosecution’s letter to the district court that the defendant was a “major non-addict pusher.” The defendant in Weston was convicted of receiving, concealing, and facilitating the transportation of heroin. After the verdict was received the court indicated it considered appropriate the minimum mandatory sentence of five years. After considering a pre-sentence report, which indicated that the defendant was a large scale heroin dealer, however, the judge reconsidered the proposed sentence and thereupon imposed the maximum sentence of twenty years. The Ninth Circuit vacated the sentence because the pre-sentence report described “other criminal conduct charged [of the defendant] [which] was very serious, and the factual basis for believing the charge was almost nil.” United States v. Weston, 448 F.2d at 633.

In an effort to avoid the precise problem over which the sentencing judge stumbled in Weston, Judge Becker in the case sub judice permitted the prosecution to call a witness to support its allegation that the defendant was a “major non-addict pusher of heroin.” Although the court took such testimony, it became apprehensive that, if it considered the testimony as to other offenses charged in the indictment pending before Judge Newcomer in the United States District Court for the Eastern District of Pennsylvania against this defendant, there was a possibility that the issue of double jeopardy might be raised in the hearing on that indictment. Moreover, defendant was represented by other counsel in the pending indictment. Judge Becker, therefore, prudently informed counsel for the parties at side bar, “I want to make it clear that I intend to sentence only with respect to the matter which is before me.” After further colloquy with counsel, he stated unequivocally, “I reiterate my intention to decide this case on the facts of this record and not in any wise to sentence Mr. Liles on the indictments which are not before me.” The court, however, did note in connection with the sentence that it did rely on certain past convictions of Liles to which it specifically referred, including the recent sentence of five to fifteen years imposed by the Philadelphia Court on a narcotics conviction.

In United States v. Metz, Appeal of Davenport, 470 F.2d 1140 (3d Cir. 1972), cert, denied, 411 U.S. 919, 93 S. Ct. 1558, 36 L.Ed.2d 311 (1973), we held that pending indictments for other criminal activity were sufficiently reliable as to warrant their consideration by a judge in fixing sentence. Senior Judge Biggs, who authored that opinion, pointed out that under 18 U.S.C. § 3577 and F.R.Crim.P. 32(c),

[t]he object of the sentencing court is thus to acquire knowledge of the character and history of the man before it. “[F]ew things could be so relevant as other criminal activity of the defendant,” United States v. Doyle, 348 F.2d 715, 721 (2d Cir. 1965), cert, denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965), for consideration of other criminal activity is important in the balancing of punishment, deterrence, and rehabilitation, thereby determining the period of confinement anticipated to be required to effect the purposes of the sentence.

470 F.2d at 1141. In that case, however, we were not called upon to decide the question of whether the judge in fixing sentence may hear testimony as to the offenses which were the subject of the pending indictment. Nor do we reach the question in this case, in view of the clear and unequivocal statement of the sentencing judge that he was not relying on the offenses charged in the pending indictment or on the broad allegation in the letter. For the same reason, we reject defendant’s second contention that he was denied due process.

The judgment of the district court will be affirmed.


author: FEINBERG, Circuit Judge:

text:
    Howard M. NEWMAN, Petitioner, v. John H. SHAFFER, Administrator, Federal Aviation Administration, and National Transportation Safety Board, Respondents.
    No. 679, Docket 73-1086.
    United States Court of Appeals, Second Circuit.
    Argued March 20, 1974.
    Decided April 5, 1974.
    John C. Barney, Ithaca, N. Y. (Buyou-cos & Barney, New York City, on the brief), for petitioner.
    James C. Hair, Jr., Atty., Dept, of Justice (Irving Jaffe, Acting Asst. Atty. Gen., Robert E. Kopp, Atty., Washington, D. C., on the brief), for respondents.
    Before LUMBARD, FEINBERG and MULLIGAN, Circuit Judges.
   FEINBERG, Circuit Judge:

Howard M. Newman petitions for review of an order of the National Transportation Safety Board holding he had violated 14 C.F.R. § 91.170(a) (the Regulation) and suspending his commercial pilot certificate for 30 days. The Board found that Newman, in operating aircraft covered by the Regulation, had committed violations in two respects : First, he had flown aircraft whose altimeters had not been timely tested, and second, Newman had not first made sure, as he was required to, that permanent records had been kept of safety inspections of the altimeters.

Newman argues to us that the proof at the administrative hearing that the altimeters had not been checked was insufficient. (Newman says they had been tested, with the results entered on “yellow tags” affixed to the altimeters themselves.) But the absence of logbook entries confirming the inspections made out a prima facie case of failure to inspect and shifted the burden of going forward with the evidence to petitioner. Against this, Newman maintains that Federal Aviation Administi’ation inspectors were invited to examine the yellow tags and should have done so. In light of our holding, infra, that the tags were not permanent records, the shift of burden was proper. Nor was the burden satisfied. Despite fair opportunity to present testimony at the hearing, Newman failed to produce a single witness who was willing to swear that the inspections had in fact taken place.

Newman also claims that the “yellow tags” met the “permanent record” requirement. Even if this were correct, it would not be controlling for Newman does not contend that he examined the tags before operating the aircraft. More importantly, the claim that the tags were permanent records is unsound. The Regulation incorporates the requirements of Appendix E, 14 C.F.R. part 43, which provides that the results of inspections be entered both on the altimeter itself and also in the “airplane log or other permanent record.” See note 1 supra. Unless this phrase is mere surplusage, which we refuse to hold, the tags allegedly affixed to the altimeters did not constitute permanent records under the Regulation. This interpretation accords with the purpose of the record-keeping requirement which is, as the administrative law judge indicated, to enable airmen conveniently to determine whether safety inspections have been performed.

We have carefully considered petitioner’s other arguments, and they are all without merit. The petition for review is denied.

      . 14 C.F.R. § 91.170(a) provides in relevant part:
      No person may operate an airplane in controlled airspace under [instrument flight rules] unless, within the preceding 24 calendar months, each static pressure system and each altimeter instrument has been tested and inspected and found to comply with Appendix E of Part 43 of this chapter. . . .
      Appendix E provides in relevant part:
      Each person performing the altimeter system tests and inspections required by § 91.170 shall comply with the following:
      (c) Records: Comply with the provisions of § 43.9 of this chapter as to content, form, and disposition of the records. The person performing the altimeter tests shall record on the altimeter the date and maximum altitude to which the altimeter has been tested and the persons approving the airplane for return to service shall enter that data in the airplane log or other permanent record.


author: McENTEE, Circuit Judge.

text:
    George MORAN, Plaintiff, Appellant, v. Marvin HOGAN, Defendant, Appellee.
    No. 73-1391.
    United States Court of Appeals, First Circuit.
    Argued March 7, 1974.
    Decided April 10, 1974.

      David A. Wylie, Boston, Mass., by appointment to the Court, with whom Martin, Morse & Wylie, Boston, Mass., was on brief, for appellant.
    William A. Brown, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
    Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

George Moran was convicted by a jury of possession of $7,000 in counterfeit ten dollar bills, in violation of 18 U.S.C. § 472 (1970). At his trial the defense presented no witnesses. Instead, it relied on alleged insufficiency of the government’s evidence, a point on which the district court denied a motion for directed verdict of acquittal. This court affirmed the conviction on appeal, United States v. Moran, 470 F.2d 742 (1st Cir. 1972), and Moran began serving a four year prison sentence.

In August 1973 Moran filed pro se what he labeled a “petition for writ of habeas corpus.” The district court appears to have treated it properly as a motion to vacate sentence and set aside the conviction under 28 U.S.C. § 2255 (1970). In the petition Moran stated a variety of grounds for relief, including a claim that he was denied effective assistance of counsel at trial. The district court, upon recommendation of the magistrate, dismissed the petition on all grounds without ordering an evidentiary hearing. Moran appeals, contending that at the least he was entitled to an evidentiary hearing on his claim of ineffective counsel. The appeal also raises a question concerning our recent decision in O’Shea v. United States, 491 F.2d 774 (1st Cir. 1974). For the reasons which follow, we affirm.

Section 2255 requires a hearing on any prisoner claim thereunder “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” Under this standard, a hearing generally is not necessary when a § 2255 motion (1) is inadequate on its face, or (2) although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the case. The first category is by far the more significant. It encompasses motions which state grounds for relief not cognizable at all under § 2255, as well as motions which contain only “bald” assertions of cognizable claims without adequate supporting factual allegations. As to the latter, a district court can often “test” the adequacy of accompanying factual allegations by assuming arguendo their truth, and then assessing their sufficiency in light of the relevant constitutional standards and the record. Essentially, that is what the district court did here.

To prevail on his § 2255 claim of ineffective counsel, Moran had to establish that his representation at trial was “such as to make the trial a mockery, a sham or a farce.” Bottiglio v. United States, 431 F.2d 930, 931 (1st Cir. 1970) (per curiam), quoting Johnson v. United States, 380 F.2d 810, 812 (10th Cir. 1967) In support of his claim, Moran submitted an affidavit from his ex-wife in which she alleged that Moran’s trial counsel refused to let her testify for the defense. Mrs. Moran said that if she had been allowed to testify she would have provided a partial alibi for her husband and also impeached portions of the testimony of government witnesses.

The magistrate, in recommending dismissal of Moran’s § 2255 petition, rejected the adequacy of Mrs. Moran’s affidavit — assuming arguendo its truth • — in summary terms. The district court in a brief order approved the magistrate’s recommendations and dismissed the petition. Although we disapprove of the summary nature of the magistrate’s opinion, see infra, we agree, after our own review of the record, with his ultimate conclusion, adopted by the district court. The alleged failure of Moran’s trial counsel to call Mrs. Moran as a witness was a question of trial tactics. As a general rule, postconviction quarrels as to such tactics cannot be found to constitute an unconstitutional deprivation of effective assistance of counsel. “Errors, even egregious ones, in this respect do not provide a basis for postconviction relief.” United States v. Rubin, 433 F.2d 442, 445 (5th Cir. 1970), cert, denied, 401 U.S. 945, 91 S.Ct. 961, 28 L.Ed.2d 228 (1971); accord, United States v. Hester, 489 F.2d 48, 50 (8th Cir. 1973) (per curiam). To be sure, there have been exceptional cases. See, e. g., Fortner v. Balkcom, 380 F.2d 816 (5th Cir. 1967) (attorney allegedly failed to call a witness who would have testified, supported by other uncalled witnesses, that she committed the murder). But the instant case is in no way exceptional. Moran’s trial counsel may well have concluded that his wife’s purported alibi would seem so incredible to the jury, in view of the extensive government evidence to the contrary, that her testimony could only hurt Moran’s cause. We will not second-guess the matter at this point. Moreover, we note that Moran’s counsel acted diligently in his defense. He filed several pretrial motions, vigorously cross-examined the government witnesses, and filed a notice of appeal after the jury verdict. Cf. Dario Sanchez v. United States, 256 F.2d 73 (1st Cir. 1958). At that point, Moran fired him and retained new counsel. We can well understand Moran’s unhappiness and dissatisfaction with the trial’s outcome. However, we can see no sixth amendment deprivation.

Finally, we feel constrained to comment on the magistrate’s opinion. In O’Shea, supra, this court held that magistrates have a basic obligation under the Federal Magistrates Act, 28 U.S.C. § 631 et seq. (1970), to furnish in their reports “a full account of all argumentatively relevant matters to enable the court to make the appraisal.” 491 F.2d at 777. The magistrate’s opinion in the instant case, filed well before O’Shea, did not comply with this standard. See n. 7 supra. However, under the particular facts of the instant case, where the magistrate assumed arguendo the truth of Moran’s factual allegations, we can see no prejudice to Moran engendered by the summary nature of the magistrate’s opinion. It would be a different matter if a magistrate’s summary opinion prevented the district court from considering facts and arguments that might have altered the final decision. We therefore affirm, despite the failure to comply with O’Shea.

Affirmed.

      . The second category is limited to motions whose claims are predicated on facts inside the record, because only as to these can a district court know definitely, without a hearing, whether the petitioner’s facially adequate supporting allegations are in fact untrue. See ganders v. United States, 373 U. S. 1, 20, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).

      . Section 2255 is available only for constitutional claims. See generally Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969).

      . See Sanders v. United States, supra, 373 U.S. note 2, at 19, 83 S.Ct. 1068; Dirring v. United States, 370 F.2d 862, 864-865 (1st Cir. 1967) ; Desmond v. United States, 333 F.2d 378, 380-381 (1st Cir. 1964).

      . The Sixth Circuit recently joined the Fifth Circuit in abandoning this standard for determining effectiveness of counsel. See Beasley v. United States, 491 F.2d 687 (6th Cir. 1974) (§ 2255 proceeding) ; West v. Louisiana, 478 F.2d 1026 (5th Cir. 1973) (habeas corpus proceeding). See also United States v. DeCoster, 487 F.2d 1197, 1201-1204 (D.C.Cir.1973) (direct appeal) ; Johnson v. Vincent, 370 F.Supp. 379 (S.D.N.Y.1974). The standard for counsel presently applicable in the Fifth and Sixth Circuits is that which is “reasonably likely to render and rendering reasonably effective assistance.” The instant ease is an inappropriate one for reassessment of this circuit’s standard because the alleged defect in counsel’s performance here was too insubstantial under either standard. See United States v. Rubin, 433 F.2d 442, 444-445 (5th Cir. 1970), cert, denied, 401 U.S. 945, 91 S.Ct. 961, 28 L.Ed.2d 228 (1971).

      . A government undercover agent testified that at about 11 a. m. November 10, 1970, he observed Moran arrive at a particular location in a 1964 Oldsmobile, and deliver a bag containing $7,000 in counterfeit bills. Mrs. Moran alleged that she would have testified that on November 10, 1970, her husband did not pick up her 1964 Oldsmobile from her place of employment until 11:30 a. m., so that he could not have made the delivery at the particular time specified by the government witness.

      . Mrs. Moran alleged that she would have disputed government witnesses as to whether they observed Moran in a certain lounge in Revere, Mass., on November 7, 1970, whether a certain car was blue or “dark green turquoise with a white top,” and whether a certain street was one-way.

      . “The Court concludes that with respect to Item 4, ineffective assistance of counsel is clearly unsupported by the record. The subsequent affidavit submitted to the Court by Jane Moran does not at this stage of the proceedings, warrant the issuance of this Writ nor does it warrant a hearing on the merits. The record is sufficiently clear. Even assuming, as we must, that the allegations of the plaintiff in a complaint must he accepted as true, no relief can be obtained under any circumstances by evidence most favorable to the complaining party. [Ballou] v. General Electric, 393 F.2d 398 (1st Cir. 1968). The Court finds that there are no facts here on which relief can be granted.”