author: SIMPSON, Circuit Judge:

text:
    Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. SUGAR CANE GROWERS COOPERATIVE OF FLORIDA and Robert Lee, Defendants-Appellees.
    No. 72-3409.
    United States Court of Appeals, Fifth Circuit.
    Oct. 25, 1973.
    Rehearing Denied Jan. 11, 1974.

      Richard F. Schubert, Sol. of Labor, U. S. Dept, of Labor, Washington, D. C., Beverley R. Worrell, Regional Sol., U. S. Dept, of Labor, Edwin G. Salyers, Atty., Atlanta, Ga., Carin Ann Clauss, Associate Sol., Donald S. Shire, Atty., Anastasia T. Dunau, Dept, of Labor, Washington, D. C., for plaintiff-appellant.
    John R. Beranek, West Palm Beach, Fla., for defendants-appellees.
    Before BELL, GOLDBERG and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

The Secretary of Labor appeals from an adverse decision in the district court, 346 F.Supp. 132, as to the applicability of the overtime provisions of the Fair Labor Standards Act, Title 29 U.S.C. Sec. 201 et seq. (FLSA), to certain of defendant’s employees. The facts of the ease are not in dispute.

The appellee Sugar Cane Growers Cooperative of Florida (Sugar Cane) employs West Indian field laborers for the harvesting of its sugar cane. The laborers enter this country under a joint program supervised by the Departments of Labor and Agriculture and the Jamaican government. Their residence in this country is temporary and is at all times confined to the labor camps which Sugar Cane is required to provide. Additional West Indians, admitted to the United States under the same program, are employed as camp cooks and attendants. Their jobs are limited to preparing the meals for the' field laborers and maintaining the barracks and appurtenant facilities used by the workers. Sugar Cane operates four labor camps in Palm Beach County, Florida. One labor camp is adjacent to the sugar mill while the other three are strategically situated throughout the growing area.

Sugar Cane processes sugar cane at its own mill. Steam power, produced in the generating plant, or boiler room, is used in the processing. Forty percent of the steam so produced goes to the mill turbines, which do the processing, and sixty percent goes to three turbo-generators which produce electricity for the entire camp. After passing through the turbo-generators, the remaining “exhaust steam” from two generators is returned to the boiler room, but the exhaust steam from the third is piped to an adjacent plant, operated by Quaker Oats Company in the manufacture of furfural (a plastic base product). After using this steam in its production process, Quaker Oats then returns all but five to ten percent of it to Sugar Cane’s boiler room through return pipes for further use. Quaker Oats is under contract to reimburse Sugar Cane for the amount of steam ultimately lost. Sugar Cane purchases a manufacturing byproduct from Quaker Oats which is used as fuel for creating steam. Some ba-gasse generated by the processing of cane is carried from Sugar Cane’s mill by conveyor to the Quaker Oats plant where it is processed into various chemical products. There is no physical connection between the two plants except for the system of steam pipes and conveyors. The steam diversion operation in no way affects the duties or hours worked of the boiler room employees. Their duties and hours would necessarily remain the same if the Quaker Oats plant ceased production.

The parties have stipulated that all the above mentioned employees are engaged “in the production of goods for commerce” and thus within the purview of Title 29 U.S.C. Sec. 207, which provides for the payment of wages to covered employees at time and one-half for hours worked beyond forty in one week, except for such employees as are within a specific exception to the FLSA. The parties stipulated also that the field laborers are exempt under § 13(b) (12), and thus not subject to the overtime provisions.

What the Secretary questioned in the lower court and again challenges on appeal is exemption from overtime pay for the camp cooks and attendants and the boiler room employees. Specifically, the following findings of the district court are alleged as error: (1) that the cooks and attendants are exempt under § 13(b) (12), the agricultural exemption; (2) that the cooks are also exempt under § 13(b) (18), the food service exemption; and (3) that the boiler room employees are exempt under Sec. 13(b) (15), the sugar cane processing exemption.

The Camp Cooks and Attendants

The Secretary first challenges the finding by the district court that the cooks and attendants, whose work is done exclusively at the labor camp facilities and never in the fields, are exempt from the overtime provision as “agricultural” workers. The term agriculture for purposes of the FLSA:

“includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities . . . the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.” Title 29 U.S.C. Sec. 203(f).

This statutory definition as construed by the Supreme Court embraces both a primary and secondary concept of agriculture :

“As can be readily seen this definition has two distinct branches. First, there is the primary meaning. Agriculture includes farming in all its branches. Certain specific practices such as cultivation and tillage of the soil, dairying, etc., are listed as being included in this primary meaning. Second, there is the broader meaning. Agriculture is defined to include things other than farming as so illustrated. It includes any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidently (sic) to or in conjunction with ‘such’ farming operations.” Farmers Reservoir & Irrigation Co. v. McComb, 1948, 337 U.S. 755, 762-763, 69 S.Ct. 1274, 1278, 93 L.Ed. 1680.

If the duties of the camp cooks and attendants fall within the latter meaning of the term agriculture, the district court’s finding that they fall within the agricultural exemption is due to be sustained.

The memorandum opinion of the lower court discussed the applicability to Sugar Cane’s operations of a secondary meaning of agriculture, and concluded that the instant dispute was controlled by Wirtz v. Osceola Farms Co., 5 Cir. 1967, 372 F.2d 584. Both parties to this appeal concede that Osceola Farms is controlling, and cite it as support for their respective (and contrary) positions. There are substantial similarities between Osceola Farms and the present case which are helpful in — but do not entirely control — our consideration of the issues presented here.

Osceola Farms contracted individually with independent growers and employed laborers to harvest sugar cane from the fields of the growers. The cut cane was transported by Osceola to its mill, where it was processed into raw sugar. The distance to the mill from the fields where its employees harvested the sugar cane was in some instances as much as 20 miles but was generally less. Germane to this appeal is the Osceola Farms court’s discussion of the agricultural exemption as applied to: (1) tractor drivers who moved the cane from the fields to the mill; (2) tractor drivers who transported the laborers from the mill to the fields and brought a midday meal to them in the fields; and (3) repairmen who worked on the agricultural equipment used in the fields, doing their work for the most part at the mill. The Secretary analogizes the position of Sugar Cane’s cooks and attendants to that of the equipment repairmen in Osceola Farms, i. e. functioning in a supportive capacity to the actual farm laborers but located at an independent, removed facility. Osceola Farms held that the repairmen were not exempt as they did not satisfy the requirement in the secondary meaning of agriculture that incidental work be performed “on a farm”. Sugar Cane argues to the contrary that its cooks and attendants are most similar to the drivers in Osceola Farms who transported first the workers, and later a midday meal, to the fields where the harvesting took place. These drivers were held to be exempt because the function they performed was necessary to the farming operation and terminated on the physical property constituting the “farm”.

The court below determined that both the camp cooks and the attendants were exempt as within the secondary meaning of agriculture. With respect to their activity being “incident to” farming, the court said that ¡“the preparation of food and maintenance of barracks must be viewed as incident to the total sugar processing and agricultural operation and a necessary! adjunct to it, . . . ” On the question of whether or not the work of the cooks and attendants was also “on a farjm”, the lower court observed that the facilities were “located adjacent to aid near the farmlands . ” and further pointed out that it considered as “most significant” the classification by the Secretary of Labor of all West Indian workers as “agricultural workers” for purposes of entry into this country

We first observe that activities such as those in question have never been classified as within the primary meaning of agriculture. Although Sugar Cane argues to the contrary such a classification has uniformally been rejected by the courts considering identical or similar support operations. Maneja v. Waialua Agricultural Co., 1955, 349 U.S. 254, 75 S.Ct. 719, 99 L.Ed. 1040; Hodg-son v. Ewing, 5 Cir. 1971, 451 F.2d 526; Wirtz v. Osceola Farms Co., supra. The Secretary does not dispute that the cooks’ and attendants’ work is “incident to or in conjunction with” the sugar cane farming done by the field laborers. Osceola Farms is ample authority for holding that the preparation of food is as integral a part of the farming opera-ron as is the transportation of that food '•o the workers. It seems obvious further that as to these particular government sponsored labor camps, the maintenance of the living quarters is no less an integral part of the entire farming operation.

But the crucial issue here is whether or not the work of the cooks and attendants is done “on a farm” so as to satisfy the latter element of the secondary meaning of agriculture. The Secretary argues that it is not on a farm because “the farm” includes no more than the separate physical sites where the agricultural work is performed. This assertion is supported by reference to the non-exempt repairmen in Osceola Farms as in a patently analogous situation to that of the cooks and attendants. The argument fails to convince us inasmuch as the Osceola Farms repairmen were located in a processing mill as much as 20 miles from the leased land where the harvesting took place.

Sugar Cane argues that the exemption of the truck drivers in Osceola Farms supports the position that the cooks and attendants work on a farm because the labor camps in question are as close to the farmland as it is physically possible for such 375 man camps to be. However, the fact that the activities of the exempted Osceola Farms truck drivers extended into the fields where the cane was harvested divests this argument of its force. We think that the work done by the cooks and attendants here lies factually somewhere in between the examples extracted from Osceola Farms.

Although we find no precedent directly in point and the issue presents difficulty, we conclude that the work done by the cooks and attendants in this case is “on a farm” for purposes of the agricultural exemption. It would not be physically possible for Sugar Cane to place its labor camps right in the middle, of the cane fields. Sugar Cane does not claim an agricultural exemption for workers whose efforts are confined to a processing mill at some remote location. These employees, rather, perform their work at a location in close proximity to the fields worked by the laborers for whom they cook and clean. Without overlooking the general principle that exemptions are to be construed narrowly against those seeking to assert them, Wirtz v. Jernigan, 5 Cir. 1968, 405 F.2d 155, we think the Secretary’s construction of the exemption in this situation is unnecessarily narrow and technical. Our interpretation of “on a farm” seems to us to be more nearly in line with what that terminology really envisages. The drafters of the section could not anticipate every conceivable factual situation arising in the future under the agricultural exemption, and the statutory language should not be read with such an assumption. We hold, consequently, that because of the unique facts of this case, the question of whether the work of the camp cooks and attendants was done “on a farm” should be resolved against the Secretary. A labor camp housing 375 men is “on a farm” in the only sense it can be if it is in fact adjacent to and near the farmland being harvested.

Having found that the camp cooks and attendants are exempted from overtime coverage as within the secondary meaning of agriculture, we do not reach the question of whether the cooks, would be exempted under the food service exemption, and of course intimate no views in that respect.

The Boiler Room Employees

The Secretary’s second contention on appeal is that the lower court erred in holding that the employees who work in the boiler room where steam is produced are exempt by virtue of Sec. 213(b)(15). That section makes the overtime provision inapplicable to any employee engaged in the processing of sugar cane into sugar. The parties agree that absent the contract with Quaker Oats for supplying a portion of the steam produced to that corporation, the employees in question would be exempt. We are called upon then to decide the effect upon the exemption of that transfer of steam to Quaker Oats.

The milling of sugar cane, in addition to the cane juice which is ultimately refined into sugar, also produces a byproduct, “bagasse”, the fibrous residue of the cane stalks. Most mills use their bagasse as fuel to produce steam, but Sugar Cane since 1966 has sent its ba-gasse to the adjacent Quaker Oats plant by conveyor belt. Quaker further processes the bagasse into certain chemical products and again by conveyor belt returns the residue from that operation, now in the form of pellets, to Sugar Cane. The pellets are burned as fuel just as the original bagasse would be used in the usual operation. Quaker Oats is without an independent source of steam power, and instead uses steam exhaust transmitted by pipes from one of the defendant’s turbo-generators, as related in the introduction to this opinion. This steam is returned to Sugar Cane by pipes. Quaker Oats pays Sugar Cane for the steam lost in the process, amounting usually to one to two thousand dollars annually. The record indicates that this reciprocal arrangement is unique, there being no known similar arrangement anywhere in the world. The boiler room employees are paid straight hourly rates for hours worked up to 48 hours per week, but do not receive time and one-half for hours worked in excess of 40 hours and up to 48 hours. Time and one-half is paid for hours worked over 48 in one week.

Two competing principles of law must be applied to this peculiar factual situation. Both parties agree that without the diversion of steam to Quaker the employees would fall squarely within the sugar cane processing exemption. The Secretary’s position is that this case falls within the rule that no exemption may be allowed for compensation of employees whose work consists of both exempt and some non-exempt activity. Hodgson v. Wittenburg, 5 Cir. 1972, 464 F.2d 1219, 1221. Sugar Cane concedes that the rule of law cited by the Secretary is correct, but asserts that it may not be applied to the case at bar because the boiler room employees perform no non-exempt work, the view taken by the district court. That conclusion is reached upon these considerations: (1) all control over the diverting process is exercised by Quaker Oats and the boiler room employees have no connection with it; and (2) a cessation of the diversion of steam to Quaker would result in no change whatsoever in the duties, the hours worked, or the workload of the Sugar Cane boiler room employees.

We reverse the district court as to the exemption of these employees.

The question is simply whether or not the boiler room employees in fact engage in any non-exempt work. Sugar Cane advances the plausible contention that they cannot be engaged in work that is non-exempt unless such work can be identified as something separate and distinct from the exempt work that is done. Since the hours and workload are unaffected by the Quaker Oats operation, appellee asserts that no non-exempt work is being done. This argument confuses the criterion for determining when one is engaged in exempt or non-exempt work. Inability to quantify the labor required to produce that which precludes exemption is not the guide. Controlling, rather, is the cause and effect relationship between the labor and the non-exempt activity.

We turn for illustration to cases construing the exemption for businesses not “engaged in commerce or in the production of goods for commerce”, Title 29 U.S.C. Sec. 202. In Mitchell v. Jaffe, 5 Cir. 1958, 261 F.2d 883, the employer was in the automobile salvage business, a wholly intrastate concern. His employees would separate marketable items such as motor parts, tires, and so on, from wrecked cars, and the remaining scrap was sold to a nearby junkyard, and thence ultimately moved in interstate commerce. Although total sales from this scrap comprised only 1.67 percent of the employer’s gross receipts, because scrap removal was a “regular, non-sporadic part” of his business, 261 F.2d at 887, he was nonetheless held to be engaged in the production of goods for commerce. It was deemed entirely irrelevant that his employees would necessarily have separated salable items from scrap regardless of whether he could find a buyer for the scrap. The point was that he did indeed sell it, and it went from the vendee into interstate commerce. While no quantifiable amount of his employees’ labor could be attributed to such production, since they had to do the separating in any case, it was still the cause of an effect which precluded exemption.

A similar result was reached in Tilbu-ry v. Rogers, 5 Cir. 1955, 220 F.2d 757, aff’g per curiam, W.D.La.1954, 123 F. Supp. 109. The employer was in the retail meat business, selling meat which was cut and prepared for sale in his shop, a wholly intrastate operation. The bones and other inedible scrap were sold, the revenue from such sales constituting .216 of 1 percent of total dollar sales. Despite the fact that such scrap had to be separated from the meat prior to sale of the meat, the butchers were held to be producing goods for commerce because the scrap ultimately moved interstate.

The exemption for employees engaged in sugar cane processing may be con-tradistinguished from the concept of goods produced for interstate commerce because it is exclusive rather than inclusive, but this alters not at all the meaning of the term “engage”. Each statutory section is triggered by a cause and effect relationship between the activity of the employees and a non-exempt result. The crux of the question is not that the employees would do the same work absent a buyer of metal scrap, or a buyer of meat scrap or a buyer of surplus steam, but that there was in fact such a buyer. Quaker Oats paid for the steam it received from Sugar Cane. Had it produced its own steam, Quaker Oats would have been required to pay its steam production employees overtime for hours worked in excess of 40 hours per week.

We add in this regard that in our opinion the congressional decision to relocate the sugar cane processing exemption in a different code section and to amend the exemption by using the word “employee” instead of an “employer” (engaged in the first processing of sugar cane), does not signal any changed legislative concept of the meaning of the word “engaged”. The change on its face was intended to preserve the exemption for employees who do solely sugar cane processing, but whose employer also engages in other and non-exempt activities. The above discussion should also make clear our view that the doctrine of de minimis has no viable place in the interpretation of the FLSA. It clearly does not. Cf. Mabee v. White Plains Publishing Co., Inc., 327 U.S. 178, 66 S.Ct. 21, 90 L.Ed. 607; Mitchell v. Jaffee, supra; Tilbury v. Rogers, supra.

Conclusion

This case presents close, difficult, and no doubt Congressionally unanticipated factual questions. Applying the law as we read it from the decided cases dealing with exemptions from the FLSA, we are in agreement with the trial court in connection with the agricultural nature of the work done by the camp cooks and attendants. But we disagree with the trial court as to the cane processing exemption it extended to the boiler room employees. Our study of the authorities leads us to conclude that the boiler room employees should not have been exempted, despite the fact that their labor contribution to Quaker Oats is incapable of computation and quantification.

Affirmed in part, reversed in part.

      . Which provides that “ [t] he provisions of this section shall not apply with respect to (12) any employee employed in agriculture . . . ” Title 29 U.S.C. Sec. 213(b) (12).

      . This section provides, in pertinent part, that “[t]he provisions of this section shall not apply with respect to . . . (18) any employee of a retail or service establishment who is employed primarily in connection with the preparation or offering of food or beverages for human consumption, either on the premises, or by such services as catering, banquet, box lunch, or curb or counter service, to the public, to employees, or to members or guests of members of clubs Title 29, U.S.C. Sec. 213(b) (18).

      . This section provides, in pertinent part, that “[t]he provisions of this section shall not apply with respect to . . . (15) any employee engaged in ... the processing of sugarcane into sugar (other than refined sugar) or syrup;” Title 29 U.S.C. See. 213(b) (15).

      . Appellee Sugar Cane relies heavily upon the fact that the Department of Labor classifies all the West Indian laborers admitted into this country under the U.S.-Jamaican agreement as “agricultural workers.” The district court, in its memorandum opinion, specifically found it “most significant” that the Secretary would consider the cooks and attendants to be agricultural workers for purposes of entry into this country, but not for purposes of the FLSA. The Secretary defends this apparent inconsistency by dis- . tinguishing the authority under which the laborers are in fact admitted into the U.S., Title 8 TJ.S.C. Sec. 1101 et seq., Immigration and Nationality Act, from the FLSA in which the term “agriculture” is statutorily defined. Thus it is argued that although the designation on the agency form Clearance Order, which was adopted pursuant to the Secretary’s regulation covering the placement of agricultural workers, 20 C.F.E. 602.8(a) uses the words “agricultural worker”, such fact is irrelevant to what Congress intended when it created exemptions to the wage and hour provisions of the FLSA.
      This issue is not controlling, but lends at least arguable support to the district court’s conclusion that the cooks and attendants are exempt as agricultural workers under the FLSA.

      . By the 1966 Amendments to the Fair Labor Standards Act.

      . From Title 29 U.S.C. Sec. 207(c) to Title 29 U.S.C. Sec. 213(b) (15).


source: Caselaw Access Project

author: JAMES HUNTER, III, Circuit Judge:

license: Public Domain

text:
    In re GRAND JURY INVESTIGATION, Philip Charles Testa, Witness. Appeal of Philip Charles TESTA.
    No. 73-1796.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 26, 1973.
    Decided Oct. 25, 1973.

      Robert F. Simone, Philadelphia, Pa., for appellant.
    Robert E. J. Curran, U. S. Atty., Kenneth A. Bravo, Stephen Stein, Sp. Attys., Dept, of Justice, Philadelphia, Pa., for appellee.
    Before SEITZ, Chief Judge, and HUNTER and WEIS, Circuit Judges.
   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This is an appeal from an order issued September 12, 1973 by Judge John Morgan Davis of the District Court, Eastern District of Pennsylvania, which holds the appellant in civil contempt for refusing to answer questions before a grand jury after he had been given immunity under 18 U.S.C. §§ 6002, 6003 (Supp.1973). The order has committed him to prison without bail until he agrees to testify before the grand jury. An application for release on bail pending determination of this appeal was denied by this court on September 14, 1973.

The appellant raises several objections to the civil contempt order. His most substantial claims are: first, that the immunity order, issued August 22, 1973, is ineffective because the judge who issued it was not impartial and should have disqualified himself; and second, that the appellant had the right to refuse to answer the questions propounded because they were based on wiretaps by the government which were admittedly - illegal. We have concluded that these claims are not meritorious and affirm the order of the district court.

The appellant appeared before the grand jury on August 22, 1973 and refused to answer all questions (other than his name and address) invoking his rights under the Fourth and Fifth Amendments of the Constitution. He was immediately brought before District Judge Louis C. Bechtle who, pursuant to a petition of the government, signed an order granting him immunity. The appellant was then directed to make another appearance before the grand jury, where he once again refused, on constitutional grounds, to answer any questions other than his name and address. The government’s successful petition for an order of civil contempt was brought before Judge Davis as a result of this second refusal to testify.

I

The appellant’s first contention is that the order of Judge Bechtle granting him immunity should be held ineffective, because the judge was not impartial. As a result, the appellant claims he was within his rights when he continued to refuse to answer the questions on constitutional grounds. This claim is based on the fact that prior to Judge Bechtle’s appointment to the bench he was United States Attorney for the Eastern District of Pennsylvania. During his tenure, the office conducted several investigations of the appellant and brought at least one prosecution against him.

The statutory basis for disqualification is 28 U.S.C. § 455 (1970) and under that section a federal judge must disqualify himself in any ease in which he has been “of counsel”. Included within the term “of counsel” is the United States Attorney for any criminal prosecution in his district. United States v. Amerine, 411 F.2d 1130, 1133 (6th Cir. 1969); United States v. Vasil-ick, 160 F.2d 631 (3d Cir. 1947). However, the clause is applicable only if the judge is asked to hear the same case in which he has been of counsel, Graven-mier v. United States, 469 F.2d 66 (9th Cir. 1972); United States v. Vasilick, supra, and that is not the situation before us now.

The earlier prosecution of the appellant and any investigations which were related to them are clearly different cases. Moreover, if any of the prior investigations to which appellant refers were unrelated to his earlier prosecutions, they did not result in any arrest or indictment during Judge Bechtle’s tenure as United States Attorney (nor have they since). Therefore, they were not related to any “case” as that term is used in § 455. United States v. Wilson, 426 F.2d 268 (6th Cir. 1970). As a result, Judge Bechtle was never “of counsel” in this case and mandatory disqualification on this basis is not required.

Nor do we believe that the judge need necessarily have disqualified himself under the “substantial interest” clause of 28 U.S.C. § 455 (1970). First, this clause is concerned primarily with pecuniary and beneficial interest, United States v. Bell, 851 F.2d 868, 878 (6th Cir. 1965); Adams v. United States, 302 F.2d 307, 310 (5th Cir. 1962), so that at the outset it has only arguable relevance to Judge Bechtle’s purported interest.

Second, the appellant contends no more than that Judge Bechtle was United States Attorney during a period in which he was prosecuted and investigated. He does not contend that, as a result, the Judge has a special interest in the outcome of this case. We agree with the Ninth Circuit that the mere fact that a judge was United States Attorney when an unrelated prosecution or investigation occurred does not by itself establish a “substantial interest” under § 455. Gravenmier v. United States, 469 F.2d 66 (9th Cir. 1972). We refuse to adopt such a per se, mandatory disqualification rule in this area.

Finally, we should point out that the only function performed in this case by Judge Bechtle was to issue the immunity order under 18 U.S.C. § 6003 (Supp.1973). Under the language of this section the judge is required to issue the order when it is properly requested by the United States Attorney. He is given no discretion to deny it. See Licata v. United States, 429 F.2d 1177, 1179 (9th Cir. 1970) (interpreting 18 U.S.C. § 2514, an analogous immunity statute). As a result, even if we were to assume that Judge Bechtle had a special interest in these proceedings, he could not in fact have affected them, given his purely ministerial function. We conclude that Judge Bechtle’s refusal to disqualify himself does not require reversal.

II

The appellant’s second contention is that he cannot be held in civil contempt for his failure to respond to the questions asked since they were based, in part, upon illegal wiretaps maintained by the government. Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2359, 33 L.Ed.2d 179 (1972). While the government admitted that it maintained a number of illegal wiretaps until July 1965, it went on to establish, to the satisfaction of the district court, that the questions were not based on these illegal wiretaps and that therefore they provided no basis for the appellant’s refusal to testify, after he had been given immunity. The appellant contends that this holding is erroneous.

Once the government has admitted the existence of illegal wiretaps, it must establish, by a preponderance of the evidence, “an independent basis, aside from the illegal surveillance, upon which to justify the questions propounded before the grand jury.” In re Egan, 450 F.2d 199, 216 (3d Cir. 1972), aff’d sub nom. Gelbard v. United "States, 408 U.S. 41, 92 S.Ct. 2359, 33 L.Ed.2d 179 (1972). In order to establish an “independent basis” here, the government introduced as evidence more recent, legal surveillance reports of the Federal Bureau of Investigation which it claims were the basis of the questions. Most of these surveillances took place in 1972 and 1973, the time period in which the events about which the appellant was questioned occurred, and most were physical sightings of the appellant meeting with various individuals. The government attorney in charge of the grand jury investigation also testified that he had not read the logs of the illegal wiretaps and that they had no effect on the questions asked the appellant. We believe this evidence was sufficient to permit the district court to find that the government had met its burden and established an “independent basis, apart from the illegal surveillance” for the questions asked.

The appellant seeks to refute this demonstration of an “independent basis” by pointing out that the possibility of taint by the illegal wiretaps is not excluded by this evidence. He urges that the Federal Bureau of Investigation agents who carried out the legal surveil-lances may have themselves used the illegal material. However, the government’s proof need not preclude every possibility of taint. See Bufalino v. Immigration and Naturalization Service, 473 F.2d 728, 734 (3d Cir. 1973). Indeed, as the Supreme Court has stated:

“Sophisticated argument may prove a causal connection between information obtained through illicit" wire-tapping and the Government’s proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint.” Nar-done v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939) (emphasis added).

In the case before us, only the possibility of a causal connection between the illegal taps and the questions has been demonstrated by the appellant. Moreover, all of the questions asked related to specific events which occurred in 1972 and 1973, the period of time in which most of the legal surveillance of the appellant, relied on by the government, took place. The illegal taps, by contrast, ended in 1965. As a result, the likelihood that the questions were tainted by the illegal taps is small; any taint which might exist is in all likelihood sufficiently attenuated; and therefore the possibility, raised by the appellant, that the Federal Bureau of Investigation agents used the illegal material does not persuasively refute the government’s evidence. Therefore, the conclusion of the district court that there was no taint is entirely proper since it could reasonably have concluded that a preponderance of the evidence indicated an independent, legal basis for the questions.

The appellant also argues that the district court’s finding of an independent basis for the questions must be reversed because Judge Davis refused to review the illegal material in camera. As a result, the appellant claims that an intelligent decision on the issue was impossible. This claim is without merit. While in some cases the .district court may find it necessary to review the illegal wiretap material, there will undoubtedly be other cases where the weight of the evidence will establish an independent basis with sufficient clarity to permit a ruling without a review of the illegal material. The necessity for firsthand in camera inspection is properly left to the discretion of the district court. There was no abuse of that discretion here.

Ill

Finally, the appellant makes the following contentions. First, he claims the government called him before the grand jury not to obtain information, but rather because they wished to harass and imprison him. Second, he claims that his right to be free from double jeopardy is violated, since he was cited for civil contempt in 1963 for failure to answer questions before another grand jury which, like this one, was investigating organized crime. Third, he contends the district court abused its discretion by finding him in civil contempt and imprisoning him. We have considered each of these claims and find they are without merit.

The order of the district court holding the appellant in civil contempt will be affirmed.

      . The judge previously assigned as Emergency Judge for the District Court, Eastern District of Pennsylvania, for the week of August 20, 1973.

      . The section reads as follows:
      “Any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related to or connected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appeal, or other proceeding therein.”

      . Even if disqualification was not required under 28 U.S.C. § 455, Judge Bechtle could have exercised his discretionary power and disqualified himself on his own initiative. However, since no prejudice in fact could have occurred, given his ministerial role, we cannot say he abused his discretion in failing to do so.

      . United States v. Cole, 463 F.2d 163, 172 (2d Cir. 1972)"; United States v. Cohen, 358 P.Supp. 112, 118 (S.D.N.Y.1973).

      . While we find that the district court’s evi-dentiary determination was correct and affirm on that basis, we also note that 18 U. S.C. § 3504, enacted as part of the Organized Crime Control Act of 1970, has application to the factual situation presented here. The statute provides:
      “(a) In any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States — ■
      * * * * *
      “(3) no claim shall be considered that evidence of an event is inadmissible on the ground that such evidence was obtained by the exploitation of an unlawful act occurring prior to June 19, 1968, if such event occurred more than five years after such allegedly unlawful act.”
      In this case the illegal surveillance ended in July 1965 and the interrogation of the witness related to 1972 and 1973 events. This being the case, the statute operates to preclude the claim of admissibility.
      However, constitutional questions may be involved in the application of this section, see, Gelbard v. United States, 408 U.S. 41, 53-54 n. 11, 92 S.Ct. 2359, 33 L.Ed.2d 179 (1972) ; In Re Evans, 452 F.2d 1239, 1248 n. 32 (D.C.Cir. 1971). In addition, we do not have the benefit of the district court’s view on these issues since it chose to rely solely on its evidentiary determination in deciding the case. As a result, we do not rely upon § 3504 as the basis for our decision in this case.

      . A much smaller amount of this legal surveillance occurred in 1970.

      . In this appeal, the appellant raises as a further objection the possibility that the subpoena which compelled him to appear before the grand jury was itself tainted by the illegal wiretaps. This assertion is based on the fact that the decision to subpoena was made by three government attorneys, and, as to two of them, no evidence was introduced to indicate whether or not they had used the illegal material.

        This possibility has no effect on our conclusion with regard to the claim that the questions were tainted. The allegation of a tainted subpoena is separate from the allegation of tainted questions and does nothing to reinforce or strengthen appellant’s argument on the issue discussed in the text, supra.

      Moreover, with regard to the question of a tainted subpoena itself, it is somewhat doubtful whether the appellant can raise it at all, since he seems to have waived this objection. He made no attempt either to quash the subpoena prior to Ms appearance, United States v. Seeger, 180 F.Supp. 467 (S.D.N.Y.1960), or to object to it after he had appeared before the grand jury but prior to the start of Ms substantive examination. However, even if this question is properly before us, we feel that the evidence which establishes an independent basis for the questions, demonstrates an adequate independent basis for the subpoena, as well.


author: PER CURIAM:

text:
    John W. RUSSO, Plaintiff-Appellee, v. MATSON NAVIGATION COMPANY, a corporation, Defendant-Appellant.
    No. 71-3057.
    United States Court of Appeals, Ninth Circuit.
    Oct. 29, 1973.

      Leon A. Pinney (argued), John S. Matthew, of Sikes, Pinney & Matthew, North Hollywood, Cal., for defendant-appellant.
    Joel N. Elevens (argued), George E. Bodle, Daniel Fogel, Eric Julber, of Bo-dle, Fogel, Julber, Reinhardt & Rothschild, Los Angeles, Cal., for plaintiff-appellee.
    Before HUFSTEDLER and WRIGHT, Circuit Judges, and RENFREW, District Judge.

       Of the Northern District of California.

   OPINION

PER CURIAM:

Defendant Matson Navigation Company appeals from a judgment on a jury verdict in favor of plaintiff seaman in the amount of $40,000. The sole issue on appeal is whether the district court correctly refused to set off against the award disability pension benefits being paid to plaintiff. We affirm the judgment.

Russo, a seaman employed by Matson, was injured aboard Matson’s vessel “Pacific Trader.” He brought suit under the Jones Act [46 U.S.C. § 688 (1970)] and general maritime law, and received a verdict for $40,000. Russo receives $300 a month as a disability retirement pension pursuant to an agreement between the Pacific Maritime Association, to which Matson belongs, and plaintiff’s union, the Seafarer’s International Union of North America, Pacific District.

Matson sought to introduce evidence of the pension benefits, but the court refused to allow it, ruling that whether a setoff is allowable is a matter of law for the court’s determination, and not a question for the jury. After verdict, the court entered judgment thereon without the requested setoff.

Matson contends that setoff of the pension benefits is proper under Section 5 of the Federal Employers’ Liability Act [45 U.S.C. § 55], and in light of a general rule of law that a tortfeasor need not pay twice for the same damages.

Section 5 of the FELA is incorporated in the Jones Act by 46 U.S.C. § 688. Section 5 provides:

“Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void: Provided, That in any action brought against any such common carrier under or by virtue of any of the provisions of this chapter, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought.” [Emphasis added.]

Matson contends that, because it contributes to the fund from which plaintiff’s benefits are paid, and because they are paid “on account of the injury,” set-off of these benefits against the award is proper under Section 5. A denial of setoff, Matson contends, forces it to pay twice for the same injury.

Clearly, the statute does not provide for a setoff of “benefits received,” but rather for a setoff of “any sum . contributed.” Therefore, any setoff to which Matson might be entitled must be limited to the amount it has contributed to the pension plan. Matson claims, however, that this amount is far in excess of the benefits being received by Russo.

Generally, a tortfeasor need not pay twice for the damage caused, but he should not be allowed to set off compensation from a “collateral source” against the amount he owes on account of his tort.

“[T]he broad rule seems to be that where the plaintiff receives from the tortfeasor payments specifically to compensate him for his injury, the tortfeasor need not pay twice for the same damage, and therefore such compensation payments should be taken into account in fixing tort damages. [Citations] On the other hand, where the injured plaintiff’s compensation comes from a ‘collateral source,’ it should not be offset against the sum awarded for the tort nor considered in determining that award.”

United States v. Price, 288 F.2d 448, 449 (4th Cir. 1961); Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 534 (9th Cir. 1962). The issue, then, is whether the pension benefits come from a “collateral source,” or directly from Matson as compensation for Russo’s injury.

In analyzing this issue, it is well established that courts should look at “the purpose and nature of the fund and of the payments,” and not merely at their source. Gypsum Carrier, Inc. v. Handelsman, supra at 534 n.31, and cases cited therein.

Two courts in other jurisdictions have recently considered almost the precise issue with which we are confronted. Haughton v. Blackships, Inc., 462 F.2d 788 (5th Cir. 1972), virtually indistinguishable from this case, held that, in computing damages payable to a seaman who was injured aboard ship, it was improper to consider the seaman’s maritime pension in mitigation of damages. The court found that, although all money in the retirement fund was contributed by the employer, the fund was established as the result of a contract between the employer and the union and was in the nature of a fringe benefit or deferred compensation. In other words, the pension was a term of employment rather than an attempt by the employer to indemnify itself against liability.

The court in Hall v. Minnesota Transfer Railway Co., 322 F.Supp. 92 (D. Minn.1971), reached a similar conclusion. The court considered a railroad’s claim that certain insurance benefits should be set off in light of Section 5 of the FELA, since the carrier paid the insurance premiums. The court concluded that Section 5 does not permit setoff of amounts that are in effect part of an employee’s income and are paid without regard to liability on the part of the employer.

“On the basis of the foregoing, the court concludes that where the insurance policy is one of general hospital and medical coverage upon which the insured may make claim without regard to liability on the part of the employer, such ' a policy is a fringe benefit maintained by the employer and is in effect part of the employee’s income for services rendered, and the collateral source rule prohibits set-off of premiums paid or benefits received thereunder by the employee. In this court’s opinion Section 5’s express set-off proviso was not intended and does not permit set-off of amounts ‘paid’ or ‘contributed’ by the employer to a policy of such general coverage pursuant to a collective bargaining contract.”

Id. at 97.

In light of Haughton and Hall, plaintiff’s pension benefits are not, for purposes of Section 5, received “on account of his injury,” but rather as a fringe benefit of his employment. This benefit is the result of a contractual agreement between plaintiff’s union and the association to which Matson belongs.

Under the pension agreement, the employee’s retirement, the length of his service, and the extent of his disability are all crucial to his eligibility for benefits. Eligibility is not dependent, however, on disability occurring in the course of employment or as the result of an employer’s negligence. A disabled employee receives no pension unless he has worked a minimum of 10 years, has been permanently and totally disabled, and has retired from sea duty. It is unnecessary that an injury cause the disability; an illness suffices. Once the employee is eligible for a pension, the amount increases with the length of employment. Thus, looking at the nature and purpose of the pension plan agreement, it is clear that benefits paid from it are “collateral” to Matson’s obligation to pay for its wrongdoing.

In summary, Matson does not bear a double burden in this case if no setoff is allowed. Pension benefits paid from the fund to which Matson contributes are one form of compensation for plaintiff’s employment. The $40,000 judgment against Matson is the sole burden that it must bear directly as a result of its negligence. “This may permit a double recovery, but it does not impose a double burden. The tortfeasor bears only the single burden for his wrong.” Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 534 (9th Cir. 1962).

Affirmed.

      . This is to be distinguished from benefits received under a limited employer indemnity insurance policy, which might be appropriately set off.
      “Where the insurance is written to cover only those injuries incurred on the job for which the employer might be liable by statute or common law, it is solely for the benefit of the employer and cannot be characterized as a fringe benefit given employees in partial consideration for their labors.
      See, e. g., Thomas v. Humble Oil & Refining Co., 420 F.2d 793 (4th Cir. 1970) . . . "

      Hall v. Minnesota Transfer Railway Co., 322 F.Supp. 92, 96-97 (D.Minn.1971) ; Haughton v. Blackships, Inc., 462 F.2d 788, 791 (5th Cir. 1972).


author: BELL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. L. J. LUTON, Defendant-Appellant.
    No. 73-2585
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 21, 1973.
    Rehearing Denied Jan. 24, 1974.

      James T. Bridges, Belzoni, Miss., for defendant-appellant.
    H. M. Ray, U. S. Atty., Alfred E. Moretón, III, Will R. Ford, Asst. U. S. Attys., Oxford, Miss., for plaintiff-ap-pellee.
    Before BELL, GODBOLD and GEE, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409.

   BELL, Circuit Judge:

Appellant was convicted on a one-count indictment for possession of an unregistered firearm in violation of 26 U.S.C.A. § 5861(d). The weapon was discovered in the trunk of appellant’s car during a search following appellant’s arrest pursuant to an arrest warrant on state burglary charges. Appellant moved to suppress the shotgun on the grounds it was seized during an illegal search. The trial court denied this motion and, after a jury verdict of guilty, sentenced appellant to 13 months imprisonment.

Two issues are raised before this court. First, appellant claims that the government failed to prove venue, inasmuch as there was no direct proof that appellant possessed the weapon within the Northern District of Mississippi. Both venue and territorial jurisdiction of a federal district court in criminal cases depend on some part of the criminal activity having occurred within its territory. 18 U.S.C.A. §§ 3231, 3237, Rule 18, F.R.Crim.P. While the government has the burden of proof on this question, the standard of proof is more relaxed than for other elements of a criminal prosecution. It is necessary only that the location of criminal activity be established by a preponderance of the evidence, Cauley v. United States, 5 Cir., 1966, 355 F.2d 175, and “if upon the whole evidence it may be inferred that the crime was committed where the venue was laid, that is sufficient.” Weaver v. United States, 5 Cir., 1962, 298 F.2d 496, 498. The record indicates that the place where appellant was arrested, and thus where he is known to have had possession of his car and its contents, was outside the city limits of Belzoni, Mississippi. How far outside that city does not appear and appellant’s position is that the record is insufficient to prove that the arrest occurred close enough to Belzoni to be within Humphreys County (the southernmost county of the Northern District of Mississippi). We do not agree. Appellant was arrested at his job by a Bel-zoni city policeman accompanied by a Humphreys County deputy sheriff. Further, testimony supports the inference that appellant first obtained possession of the weapon within the Belzoni city limits. We are of the opinion that the record is sufficient to support jurisdiction and venue in the Northern District of Mississippi.

Appellant’s second contention is that the unregistered shotgun was found during an illegal search. The trial court concluded that appellant consented to the search. While the testimony is conflicting, this finding is not clearly erroneous.

Appellant contends, however, that as a matter of law he could not give a valid consent if he was not first informed that he had the right to withhold consent and to require the police to obtain a search warrant upon a showing of probable cause. He seeks to distinguish Sehneekloth v. Bustamonte, 1973, 412 U. S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854, on the grounds that it dealt only with consent given by an individual who was not in police custody. He contends that custody is such an inherently coercive condition that a person subject to it must be specifically informed of his rights before he can waive them. This contention is without merit in the light of United States v. Legato, 5 Cir., 1973, 480 F.2d 408, 413, and United States v. Canseco, 5 Cir., 1972, 465 F.2d 383, 385. These cases establish that in this circuit valid consent to search may be given by a person under arrest who has not been specifically informed of his Fourth Amendment rights, so long as there is no proof of coercion or intimidation and if prior to the search Miranda warnings are given. See Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694. The record of this case clearly establishes that appellant was not coerced or intimidated by the arresting officers. Further, the district court was not clearly erroneous in its conclusion that appellant received Miranda warnings before consenting to the search.

Affirmed.


author: PER CURIAM.

text:
    Charles H. JOHNSON, Sr., Appellant, v. Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Appellee.
    No. 73-1279.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 18, 1973.
    Decided Nov. 14, 1973.

      Robert E. McGarry, St. Paul, Minn., for appellant.
    Francis X. Herman, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before LAY, BRIGHT and WEBSTER, Circuit Judges.
   PER CURIAM.

The claimant, Charles H. Johnson, Sr., appeals from the district court’s judgment in favor of the Secretary of Health, Education and Welfare, which had denied him Social Security disability insurance benefits under 42 U.S.C. §§ 416(i) and 423.

The period of insurability for plaintiff under the Social Security Act expired December 31, 1963. Plaintiff had the burden of showing by substantial evidence that he was disabled from engaging in any substantial gainful activity on or before that date. The administrative trial judge found that Johnson was not under a “disability” as defined in the Act. This finding was sustained by the Secretary of Health, Education and Welfare. The district court affirmed the Secretary’s denial of any benefit, finding that although the medical testimony indicated that the claimant was unable to do any heavy lifting he nonetheless could have engaged in gainful employment as a dispatcher for a taxi cab company, a job he had previously held in the late 1940’s.

On appeal Johnson, who was without counsel at the disability hearing, urges that the only testimony regarding his ability to serve as a cab dispatcher was elicited from him and at the time he testified he did not feel he could serve in this capacity because he was unable to sit for any length of time.

The administrative trial judge, after reviewing the claimant’s long medical history, observed:

Taking the claimant’s contentions with respect to his restrictions and limitations at face value, i. e., that during the time in issue he had to alternately sit and stand and that he could not maintain one position for too long, it would appear, nevertheless, that during the critical period he was able to perform his former sedentary type job as a taxi dispatcher. I find it quite significant that from 1962 to 1965 he successfully pursued a course at a business school, completing his studies there in 1965. It would be fair to conclude that the same residual capacities which enabled Mr. Johnson to successfully complete three years at a business school would have been quite adequate to enable him to perform the work of a taxi dispatcher.

The record shows that the claimant testified that because of his incapacity he was able to attend business school from 1962 to 1965, only two hours a day and therefore it took him three years to complete a “short course.” At the hearings he could not remember the normal length of the course.

It is true, as the district court recognizes, that the examiner, sitting as a trier of fact, may apply his experience and judgment in weighing the testimony of experts and draw fair and reasonable conclusions from the evidence. It is one thing for the examiner to infer that the overall evidence did not support the claimant’s allegation of disability; however, it is another for the examiner to make that inference on his own determination that the claimant could serve in a specific vocation, when the only evidence in the record disputes it.

Claimant urges that under the circumstances a vocational expert should have been called to assess and evaluate his capacity and ability to perform gainful employment. In Garrett v. Richardson, 471 F.2d 598, 603-604 (8th Cir. 1972), this court observed:

The burden of producing such a person must rest with the hearing examiner and in the absence of substantial evidence from other sources bearing directly on the issue of “substantial gainful activity,” the testimony of a ■vocational counselor is essential for the affirmance of an examiner’s findings.

Our statement in Garrett does not mean in every Social Security disability hearing the administrative judge must call as a witness a vocational counselor. Where, however, the essential issue relates to the capacity of the claimant to perform a specific job and there is no other evidence directly on that issue, in order for the record to be fully and fairly developed, a vocational expert should be called. Under the circumstances, we find the record was not fully and fairly developed. See Sellars v. Secretary, 458 F.2d 984 (8th Cir. 1972).

We are aware on the present record that the medical testimony is likewise confusing and uncertain. This is primarily due to the lapse of time involved from the date of insurability to the time of the hearing, as well as to the complications of additional disability incurred by the claimant after the date of insura-bility. Claimant now has competent counsel. On remand before the Secretary, counsel will have the opportunity to more fully develop medical opinion, as well as a vocational counselor’s evaluation as to the claimant’s condition and whether or not he was incapacitated from engaging in gainful activity on or before December 31, 1963.

The judgment is reversed and remanded to the district court with directions to remand the claim to the Secretary of Health, Education and Welfare for a further hearing.

      . Counsel, admittedly off the record, asserts in the appellate brief that the course was actually a 48 week course and that due to claimant’s incapacity it took him 111 weeks to finish it.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERCONTINENTAL MFG. CO., INC., BERGMAN MANUFACTURING COMPANY, Respondent.
    No. 73-1744
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 12, 1973.
    Elliott Moore, Acting Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Elmer P. Davis, Director, Region 16, N. L. R. B., Fort Worth, Tex., for petitioner.
    Allen P. Schoolfield, Jr., John M. Weissert, Dallas, Tex., for respondent.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

      Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

In this case, the National Labor Relations Board, pursuant to section 10(e) of the National Labor Relations Act, has applied for enforcement of its Order issued on February 7, 1973, against Intercontinental Manufacturing Company, Inc., Bergman Manufacturing Company (hereinafter “Company”). Although the record reveals conflicting evidence, we are of the opinion that the Board’s Order should be enforced.

Since 1962, employee Troy Hill had been active in the numerous unsuccessful attempts of the International Association of Machinist and Aerospace Workers, AFL-CIO (hereinafter “Union”), to organize the Company plant. On February 9, 1972, the Union won a representation election. During this last Union campaign, Hill was very active in soliciting signatures to authorization cards, talking on numerous occasions to all or almost all of the employees in the plant, serving on Union committees, and holding one or two group question-and-answer sessions. The evidence shows that these activities were well known to various management officials.

On one occasion during the course of this last campaign, Hill was summoned to a Company office and briefly questioned by his department supervisor about his Union sympathies. On February 10, 1972, the day following the Union’s victory in the representation election, Hill was told that he was being laid off, ostensibly as part of a general layoff policy of the Company. Hill’s work for the Company ceased as of February 14, 1972.

The Board affirmed the two basic findings of the Administrative Law Judge: that the Company violated section 8(a)(3) and (1) of the Act by manipulating the classifications of its layoff policy in order to eliminate Hill from its employ because of his membership and activities on behalf of the Union, see N.L.R.B. v. WTYJ, Inc., 5 Cir., 1959, 268 F.2d 346; and that the questioning of Hill in a private office by a high supervisory official of the Company was intentionally coercive and consequently in violation of section 8(a)(1) of the Act, see N.L.R.B. v. Varo, Inc., 5 Cir., 1970, 425 F.2d 293, 298; N.L.R.B. v. Cameo, Inc., 5 Cir., 340 F.2d 803, cert, denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339 (1965). The Board’s Order requires that the Company offer Hill immediate and full reinstatement and make him whole for any loss of pay he may have suffered as a result of the discrimination against him.

After a careful review of the evidence adduced at the hearing before the Administrative Law Judge, we are convinced that the Board’s Order is supported by substantial evidence on the record as a whole and should, therefore, be enforced in all respects. See N.L.R. B. v. Walton Mfg. Co., 369 U.S. 404, 405, 82 S.Ct. 853, 854, 7 L.Ed.2d 829 (1962); United States Rubber Co. v. N.L.R.B., 5 Cir., 1967, 384 F.2d 660, 663.

Enforced.

      . 29 U.S.C. § 151 et seq.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Larry Gr. CARTER, Defendant-Appellant.
    No. 73-1360.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 9, 1973.
    Decided Nov. 6, 1973.
    Cornelius Pitts, Detroit, Mich., for defendant-appellant.
    Dennis M. Furman, Asst. U. S. Atty., for plaintiff-appellee; Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., on brief.
    Before PECK and McCREE, Circuit Judges, and ALLEN, District Judge.

       The Honorable Charles M. Allen, United States District Judge for the Western District of Kentucky, sitting by designation.

   PER CURIAM.

This is an appeal from a judgment of conviction of knowingly and unlawfully possessing a quantity of cocaine, a controlled substance, in violation of 21 U.S. C. § 844(a), entered by the court sitting without a jury.

The sole issue presented on appeal is whether there was sufficient evidence to permit the trial judge to find beyond a reasonable doubt that the offense had been established. This issue was preserved for our consideration by a timely motion for acquittal.

The evidence viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), establishes that the controlled substance was found by federal agents in a bowl in plain view in the apartment in which appellant resided.

The district court expressly posited his finding of guilt on the inference he drew that appellant constructively possessed the cocaine because he occupied and controlled the apartment where it was found. Appellant, on the other hand, contends that the cocaine could just as likely have been the property of one of the three or four other persons present in the apartment when the controlled substance was discovered or that it could have been left there by someone in attendance at a party held on the premises the previous Saturday. Appellant urges us to adopt the rule that in circumstantial evidence cases, the evidence must exclude every reasonable hypothesis except that of guilt before the trier of fact may consider the question of guilt or innocence.

Although there is precedent in other circuits and in some state jurisdictions supporting this proposition, see, e. g., Guevara v. United States, 242 F.2d 745 (5th Cir. 1957); Delgado v. United States, 327 F.2d 641 (9th Cir. 1964); People v. Davenport, 39 Mich.App. 252, 197 N.W.2d 521 (1972), it is not the law of this circuit. United States v. Conti, 339 F.2d 10 (1964); United States v. Prieur, 429 F.2d 1237 (1970).

In Conti, we followed the teaching of the Supreme Court in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954) where it said:

The petitioners assail the refusal of the trial judge to instruct that where the Government’s evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt. There is some support for this type of instruction in the lower court decisions, [Citations omitted], but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect, [Citations omitted].
Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more. 404 U.S. 938, 92 S.Ct. 274, 30 L.Ed.2d 250.

We are not persuaded to reconsider the rule of this circuit at this time.

The record suggests that there may be a substantial issue concerning the validity of the seizure of the cocaine, but this issue was not presented in this appeal and we expressly do not decide it here.

Accordingly, the judgment is affirmed.


author: McGOVERN, District Judge:

text:
    Ronald V. RASCHIO and Donna F. Ras-chio, husband and wife, Plaintiffs-Appellants, v. James N. SINCLAIR et al., Defendants-Appellees.
    No. 72-1002.
    United States Court of Appeals, Ninth Circuit.
    Nov. 2, 1973.
    Rehearing Denied Dec. 17, 1973.
    William B. Murray (argued), Ben T. Gray, Portland, Or., for plaintiffs-appellants.
    R. Alan Wight (argued), Norman J. Wiener, Clifford N. Carlsen, Jr., Miller, Anderson, Nash, Yerke & Wiener, Portland, Or., for defendants-appellees.
    Before MERRILL and TRASK, Circuit Judges, and McGOVERN, District Judge.

       The Honorable Walter T. McGovern, United States District Judge for the Western District of Washington, sitting by designation.

   McGOVERN, District Judge:

Appellants’ Raschio appeal from a District Court Order granting a Summary Judgment in favor of Hughbanks, Inc. and E. M. Adams and Company and denying a Summary Judgment in favor of appellants. They also ask this Court to declare this case a Class Action for purposes of further proceedings upon remand to the District Court.

The Raschio Complaint is a Civil Action for damages and is predicated upon an alleged violation by appellees and others of Section 10(b) of 15 USCA § 78(j) and Rule 10b-5 of the Securities and Exchange Commission Act of 1934, 17 C.F.R. § 240. Defendants are the Data Pacific Corporation, its officers, directors, accountants, the principal underwriter of a stock issue and a number of stock brokers, including these appel-lees.

It is alleged that all defendants, singly and in concert, wrongly participated in the sale of shares of common stock of the Data Pacific Corporation by the use of a device, scheme and artifice to defraud prospective purchasers of the securities in question, and that the defendants obtained money and properties from purchasers of the securities by the use of untrue, or the omission of true, statements of material facts.

Rule 10b-5 makes it unlawful for any person to commit such acts by the use of interstate commerce, or of the mails in connection with the purchase or sale of any security.

The basis for the Order of the trial court in granting summary judgments for the appellees was apparently but not expressly stated that the appellants had not purchased their shares of stock in connection with any thing that the ap-pellees had done or had failed to do. The record is clear that such fact was clearly supported by substantial evidence.

Appellants contend, however, that the element of “in connection with the purchase or sale of a security” is not a necessary predicate for recovery. They insist that they are entitled to a judgment even though they may have purchased their shares of stock without knowledge of the alleged tainted prospectus. We affirm the trial court.

Section 10(b) of 15 USCA § 78(j) and Rule 10b-5, 17 C.F.R. § 240.10b-5, which implements that Section, expressly require that the acts complained of must be “in connection with the purchase or sale of any security”. If the complainant fails to show that there was a purchase or a sale of the security involved and that such purchase or sale was made “in connection with” the alleged act or acts of misconduct as described in the Rule, there can be no recovery.

In S. E. C. v. Texas Gulf Sulphur Company, 401 F.2d 833 (2nd Cir. 1968) (en banc), cert, denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969), the Court accurately stated that:

It is next claimed that this Court should direct the trial court to declare this a Class Action for purposes of further proceedings. This we decline to do. The record fails to show, as appellees contend, that the trial court ever considered or ruled upon the appellants’ Motion for such an order. Rule 23, Federal Rules of Civil Procedure vests that authority in the trial court. Appellants should address their Motion to that Court.

“. . . [I]t seems from the legislative purpose Congress expressed in the Act, and the legislative history of Section 10(b) that Congress when it used the phrase, ‘in connection with the purchase or sale of any security’, intended only that the device employed, whatever it might be, be of a sort that would cause reasonable investors to rely thereon, and in connection therewith, so relying, cause them to purchase or sell a corporation’s securities.” 401 F.2d at 860. Also, see Iroquois Industries, Inc. v. Syracuse China Corporation, 417 F.2d 963 (2nd Cir. 1969) and Gottlieb v. Sandia American Corporation, 452 F. 2d 510 (3d Cir. 1971), cert, denied,

And here the facts are clear: Appellant Vernon Raschio stated upon deposition that he purchased the shares of stock in question approximately two (2) months before issuance of the prospectus which they claim to be in violation of the Rule. He stated that he did not rely upon the prospectus in any way in buying, holding or disposing of the shares of stock in question. It cannot be said, as it must if appellants are to prevail, that appellants purchased or sold their securities in reasonable reliance upon the misrepresentations of appellees.

Affirmed.


text:
    Jack Donald TODD, Petitioner-Appellant, v. Leroy STYNCHCOMBE, Sheriff, Fulton County, Ga., Respondent-Appellee.
    No. 73-1693.
    United States Court of Appeals, Fifth Circuit.
    Nov. 9, 1973.

      Glenn Zell, Atlanta, Ga. (Court-appointed) , for petitioner-appellant.
    Lewis R. Slaton, Dist. Atty., Atlanta Judicial Circuit, Carter Goode, Morris H. Rosenberg, Atlanta, Ga., for respondent-appellee.
    Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
   PER CURIAM:

Jack Donald Todd was convicted by a jury in the Fulton Superior Court, Atlanta, Georgia, of the offense of burglary. The conviction was affirmed by the Court of Appeals of Georgia, Todd v. State, 125 Ga.App. 841, 189 S'.E.2d 696.

In his federal habeas corpus proceedings Todd contended that he was denied his federally guaranteed constitutional rights by a portion of the charge to the state trial jury which, standing alone, would appear to shift the burden of proof to him instead of allowing it to rest on the State, where it properly belonged. The record reflects, however, that during the course of the charge the trial judge told the jury that the burden was upon the State to prove the defendant guilty as charged beyond a reasonable doubt, that the burden was upon the State to prove every material allegation of the indictment to a moral and reasonable certainty and beyond a reasonable doubt, that the State must prove beyond a reasonable doubt that an offense was committed as alleged and that the defendant committed it, that the defendant was presumed to be innocent unless and until the presumption was overcome by evidence sufficiently strong to satisfy the jury of his guilt as charged to a reasonable and moral certainty and beyond a reasonable doubt.

Moreover, in the context of circumstantial evidence and upon a recitation of the allegations of the indictment, the jury was again informed of the same prerequisites to a verdict of guilty.

We think the purported infirmity was correctly considered in the context of the total charge, Williams v. Wainwright, 5 Cir., 1969, 414 F.2d 806; Lloyd v. United States, 5 Cir., 1969, 412 F.2d 1084. Considering the jury instructions as a whole, the Georgia Court of Appeals, Todd v. State, supra, found no reversible error. We perceive none of any federal constitutional dimension.

We now address a more basic issue.

The date of the alleged burglary was January 29, 1970. On that date the statutory Georgia trial procedure was that a jury returning a verdict of guilty would also prescribe the sentence. A statute made effective July 1, 1970 changed the previously existing method to one in which the jury will first decide guilt or innocence. If there is a verdict of guilty then the jury fixes the penalty after a separate sentence hearing. Todd was tried after the effective date of the new statute and was given the separate sentence hearing. He says that this was an ex post facto deprivation of his constitutional rights because the new procedure allowed the jury to be informed of his prior convictions of burglary, something that could not have been done at the time he committed the offense of which he had been convicted.

The Georgia Court of Appeals certified the question to the Supreme Court of Georgia. That Court held that the application of the new sentencing procedure to convictions for crimes committed prior to the effective date of the act did not violate the constitutional prohibition against ex post facto laws, Todd v. State, 228 Ga. 746, 187 S.E.2d 831 (1972).

We agree with the reasoning of the Georgia Supreme Court and affirm the Judgment of the United States District Court, denying habeas corpus relief, People v. Ward, 50 Cal.2d 702, 328 P.2d 777, cert, denied 359 U.S. 945, 79 S.Ct. 730, 3 L.Ed.2d 678; Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L. Ed. 204; Mallett v. North Carolina, 181 U.S. 589, 21 S.Ct. 730, 45 L.Ed. 1015; Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337.

Affirmed.


author: COFFIN, Chief Judge.

text:
    Rigoberto MELENDEZ, Plaintiff, Appellee, v. George P. SHULTZ, as he is Secretary of the Treasury, Defendant, Appellant.
    No. 73-1173.
    United States Court of Appeals, First Circuit.
    Argued Oct. 4, 1973.
    Decided Nov. 5, 1973.

      Harry H. Ellis, Staff Assistant to the Chief Counsel, with whom Matthew J. Werneth, Chief Counsel, Bureau of Alcohol, Tobacco and Firearms, Washington, D. C., James N. Gabriel, U. S. Atty., and William A. Brown, Asst. U. S. Atty., were on brief, for appellant.
    Peter K. Speert, Boston, Mass., with whom Paula W. Gold, Boston, Mass., was on brief, for appellee.
    Before COFFIN, Chief Judge, MOORE, Senior Circuit Judge, and McENTEE, Circuit Judge.

       Of the Second Circuit, sitting by designation.

   COFFIN, Chief Judge.

Appellee challenged the constitutionality of forfeiture proceedings under 49 U.S.C.A. § 782 and sought to enjoin the operation of the statute as applied to him. The challenge was based on a Fifth Amendment Due Process claim and a Fourth Amendment claim. A three-judge court was convened, and, without reaching the broader issues posed by the complaint, ordered the plaintiff’s car returned, holding that the failure of the government to obtain a warrant violated the Fourth Amendment, 356 F.Supp. 1205.

The liminal issue is whether we have jurisdiction to hear the appeal under 28 U.S.C. § 1253. If the court below was improperly convened, this court has jurisdiction to hear the appeal, Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800 (1940). If a complaint seeks injunctive relief against enforcement of a federal statute on the basis of claimed unconstitutionality, a three-judge court must be convened, 28 U.S.C. § 2282. This procedure can be avoided only if the claim is frivolous, Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973). In this case, the claim clearly challenged the constitutionality of the statutory scheme for seizure and forfeiture and sought to enjoin its operation as to appellee. Although the government has strenuously argued that the statutory scheme is exclusive, such an ipse dixit falls far short of demonstrating the absence of a non-frivolous issue.

While appeal normally lies directly to the Supreme Court from a decision of a properly convened three-judge court, this general rule is subject to some complex variations. See American Law Institute, Study of the Division of Jurisdiction Between State and Federal Courts, § 1374 (1969) and commentary at pp. 28-29. One definite exception to direct appeal has been carved out for cases where declaratory but not injunctive relief is sought and granted. In such cases appeal lies to a court of appeals. Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970); Rockefeller v. Catholic Medical Center of Brooklyn & Queens, Inc., 397 U.S. 820, 90 S.Ct. 1517, 25 L.Ed.2d 806 (1970). This narrow, literal reading of the statute is the result of concern for the burden created by direct appeals upon the Supreme Court docket. Goldstein v. Cox, 396 U.S. 471, 478, 90 S.Ct. 671, 24 L.Ed.2d 663 (1970); Phillips v. United States, 312 U.S. 246, 250, 61 S.Ct. 480, 85 L.Ed. 800 (1941). The Second Circuit, relying on this trend toward restricting direct appeals, recently held that it is the relief granted which must be looked to and if the three-judge court “forbears” from either granting or denying injunctive relief, appeal must be taken to the courts of appeal. Thoms v. Heffernan, 473 F.2d 478 (2d Cir. 1973). The question arises, therefore, whether we have jurisdiction in this case because the three-judge court decided on a narrow ground of application, not reaching the facial constitutionality of the federal statute. See Moore, 9 Federal Practice 70 & 80 (1973).

This case does not afford an opportunity for further narrowing the statute. We share the concern for the Supreme Court’s docket and the difficulties generally provoked by the three-judge court statute. However, Congress has not seen fit to alter its provisions, and while it remains on the books, there is value in not frustrating both its purpose and its predictability of operation. Even the most literal reading applies to this case. Title 28 U.S.C. § 1253 provides “any party may appeal to the Supreme Court from an order granting or denying ... an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.” Here, a federal agency was ordered to return property forfeited pursuant to the normal operations of an Act of Congress. This was an order “granting an injunction”. Insofar as it did not reach the appellee’s Fifth Amendment Due Process argument it denied further relief. We cannot parse the statute to say that the order was not one “granting or denying ... an interlocutory or permanent injunction” by a properly convened three-judge court.

We observe, finally, ihat were we to accept jurisdiction and respect the scope of review permitted to us, we would be precluded from considering the broader constitutional issues presented below. Such a limitation on review would not be present if there is direct appeal to the Supreme Court.

The case is remanded to the District Court so that it may enter a fresh decree from which timely appeal may be taken to the Supreme Court.

      . Lynch v. Household Finance, 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1971), may arguably be read to direct that even purely jurisdictional questions about the convening of a three-judge court must be decided first by the Supreme Court. We do not reach this issue.

      . An injunction seeking to restrain the operation of a statute as to a particular plaintiff is an action for “an injunction restraining . . . execution” of a federal statute under 28 U.S.C. § 2282. Schneider v. Smith, 390 U.S. 17, 88 S.Ct. 682, 19 L.Ed.2d 799 (1968) ; Federal Housing Administration v. The Darlington, Inc., 352 U.S. 977, 77 S.Ct. 381, 1 L.Ed.2d 363 (1957) ; Harrison v. McNamara, 228 F.Supp. 406 (D.C.Conn. 1964), aff’d, 380 U.S. 261, 85 S.Ct. 954, 13 L.Ed.2d 960 (1965).


author: MULLIGAN, Circuit Judge:

text:
    Fred O’NEIL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 240, Docket 73-1843.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 28, 1973.
    Decided Oct. 25, 1973.

      John R. Hupper, New York City, for petitioner-appellant.
    David E. Flierl, Asst. U. S. Atty. (John T. Elfvin, U. S. Atty., W. D. N. Y., Buffalo, N. Y.), for respondent-appellee.
    Before MOORE, MULLIGAN and OAKES, Circuit Judges.
   MULLIGAN, Circuit Judge:

This is an appeal from an order of the United States District Court, Western District of New York, Hon. John O. Henderson, denying without a hearing the petitioner’s motion under 28 U.S.C. § 2255 to vacate and set aside a judgment of conviction and the sentence imposed therefor.

The appellant Fred O’Neil was indicted and tried in the Western District of New York for uttering and publishing a forged United States Treasury check in violation of 18 U.S.C. § 495 and possessing a Treasury check stolen from the mail in violation of 18 U.S.C. § 1708. The trial was held on November 25, 26 and 28, 1969, before Judge Henderson and a jury. A guilty verdict was returned on both counts by the jury after three hours of deliberation on November 28, 1969. On December 22, 1969, O’Neil was sentenced by the trial judge to ten years in prison and a $1000 fine on the conviction for uttering forged checks, and five years in prison and a $2000 fine on the conviction for possession of stolen mail, with sentences to run concurrently. On December 29, 1969, O’Neil filed a Notice of Appeal which he successfully moved to withdraw on July 28, 1971. O’Neil’s reason for withdrawing his appeal was that, subsequent to his federal offenses, he had committed state offenses and his then attorney had managed to have any state sentences run concurrently with his federal sentences. In a hearing before Judge Henderson on August 4, 1971, O’Neil revealed that he had a real concern about his narcotic addiction and wanted to be cured. On the basis of this disclosure, O’Neil was eventually committed to the Federal Addiction Research Center in Lexington, Kentucky, where he was incarcerated when he made the present § 2255 motion.

The gist of O’Neil’s motion is that, as the result of the ingestion of heroin, he was mentally incapacitated prior to, during and subsequent to trial and was therefore unable to decide whether to testify in his own behalf and whether to call witnesses on his behalf. O’Neil’s motion alleges that he slept constantly during the trial, and that this provoked the trial judge to remark that he did not like “the manner in which defendant held himself.” Judge Henderson’s opinion below points out that the only comment made by him about petitioner’s demeanor was made after trial and adverted to the fact that O’Neil had been late in arriving at the court on two days of the trial. O’Neil further argues that after being found guilty he was ordered to the hospital “for withdrawal symptoms.” The court below stated that the record only indicates that defense counsel, after the jury had returned its verdict, pointed out to the court that “the defendant isn’t well, and I don’t know the nature of his illness . . . .” In response the court stated, “The marshal is present. You heard that, the defendant makes some claim of illness. I assume you will take appropriate steps to inquire about that and treat him accordingly . . . .”

O’Neil’s other claim is that his state of complete lack of understanding was so apparent that the trial judge asked whether he actually understood the proceedings. The transcript reveals that, at the conclusion of the Government’s case, O’Neil waived his right to take the stand and to call witnesses in his behalf. In order to make sure that O’Neil thoroughly understood his rights, the trial judge directly addressed defendant to assure himself that he was fully conversant with these constitutional rights.

The court below dismissed the petition since it was vague and conclusory and inconsistent with both the record of the trial proceedings and the defendant’s conduct during these proceedings. Permission to appeal in forma pawperis was denied below but was granted by this court on May 11, 1973, and present counsel was assigned.

We think that the court below properly denied the relief sought in the petition without an evidentiary hearing. The leading case in this circuit is United States v. Miranda, 437 F.2d 1255 (2d Cir. 1971). Judge Smith, reviewing the authorities, concluded:

The general consensus of the courts which have considered the issue, therefore, seems to be where no evi-dentiary facts are alleged to support a bald allegation of mental incompetence, a hearing may not be required On the other hand, where the movant has raised detailed and controverted issues of fact, a hearing will be required.

Id. at 1258. See also United States v. Malcolm, 432 F.2d 809, 812 (2d Cir. 1970).

Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973) (per curiam) is not to the contrary. The petitioner in Fontaine waived counsel and pleaded guilty after the trial court had questioned him as to his understanding of the charge and the consequences of his plea. About two years later, petitioner filed a § 2255 motion to vacate his sentence on the ground that the plea had been due to coercion by police, fear and mental and physical illness. The district court and the sixth circuit denied the motion without an evidentiary hearing, reasoning that collateral attack was impossible after the open court admission that the plea was voluntary. In reversing, the Supreme Court emphasized that the § 2255 motion set out detailed factual allegations, supported by documents and records, establishing treatment for addiction and other severe illnesses. Aside from the fact that the petitioner here did not plead guilty and was represented by retained counsel during a three day trial at which his demeanor could be observed by the court, the present case is distinguishable from Fontaine because there were here no detailed or controverted issues of fact raised by the petitioner. The allegations made by O’Neil which have been discussed were not supported by the record before us nor were they augmented by any hospital or other records in support of his claim. Hence we affirm the judgment below.

At the same time it has become apparent to us on the argument of .the appeal that his motion may have merit and that an evidentiary hearing may be appropriate after a revised motion is prepared. Counsel on appeal has discovered hospital and other reports which, although not in the record before us, indicate that O’Neil was addicted to heroin and that he had been treated before and immediately after trial, at which time he manifested symptoms indicative of the withdrawal syndrome. It may be that upon a subsequent application the petitioner will be able to set forth such facts as in the opinion of the district court might justify an evidentiary hearing. If that be so, while a court is not required to entertain successive applications for similar relief (28 U.S.C. § 2255), the ends of justice may be served by an evidentiary hearing. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Gomez v. United States, 396 F.2d 323, 326 (9th Cir. 1968); Stephens v. United States, 246 F.2d 607 (10th Cir. 1957) (per curiam). See also Grant v. United States, 451 F. 2d 931, 933 (2d Cir. 1971). Whether or not petitioner can establish that his constitutional right to due process was tainted by his alleged incompetency is a judgment for the court below to make and as to which we of course express no opinion.

Affirmed.


author: PER CURIAM: CHAMBERS, Circuit Judge

text:
    In the Matter of the Chapter XI Bankruptcy Arrangement Proceedings of Lee Bros. Value World, Inc., a California corporation, Debtor No. 104507-SC. Jack J. FISHER and Thomas E. Burke, Appellants, v. LEE BROS. VALUE WORLD, INC., a California corporation, Appellee.
    No. 71-2665.
    United States Court of Appeals, Ninth Circuit.
    Oct. 25, 1973.
    Alexander R. Imlay (argued), John J. Mullane, Jr., Kerner, Colangelo & Imlay, San Francisco, Cal., for appellants.
    Marshall Cornblum (argued), Thiel, Wallace, Bolton & Cornblum, Oakland, Cal., Anixter & Aronson, Burlingame, Cal., for appellee.
    Before CHAMBERS and SNEED, Circuit Judges, and FERGUSON, District Judge.

      The Honorable Warren J. Ferguson, United States District Judge for the Central District of California, sitting by designation.

   OPINION

PER CURIAM:

Value World, Inc., was the corporate subsidiary of Lee Bros., Inc. Both were California corporations. On March 20, 1963, Value World, Inc., as tenant, executed a written lease with Topaz Builders, Inc., as landlord. On the same day, Lee Bros., Inc., executed a written guaranty of the obligations of Value World, Inc., its subsidiary, under the lease. On March 1, 1965, Value World, Inc., was merged into Lee Bros., Inc., and the surviving corporation, Lee Bros. Value World, Inc., is the debtor and appellee in these arrangement proceedings. On August 16, 1967, appellants became the successors in interest to the original landlord, Topaz Builders, Inc.

On September 29, 1967, appellee filed a petition for an arrangement under Chapter XI of the Bankruptcy Act. An order authorizing appellee to reject the lease was filed. Appellants then filed two separate proofs of claim, one for breach of the lease and one for breach of the guaranty.

The Referee held that the merger did not extinguish the obligations of either the subsidiary-debtor or parent-guarantor with respect to their obligations under the lease and guaranty. He went on to hold that, notwithstanding the fact that appellants have a provable claim for the breach of the lease and a separate provable claim for the breach of the guaranty, Section 353 of the Bankruptcy Act limits appellants as landlords to a sum not exceeding the rent, without acceleration, reserved by the lease for three years after the date of surrender of the premises. The District Court affirmed.

We agree with the result reached by the Referee, but we have doubt about certain portions of his reasoning. Specifically, we hesitate to accept his conclusion that, even after the merger, claimants had separate provable claims under the lease and the guaranty. The assumption of a debt that the assuming party previously guaranteed should not result in vesting the creditor with two claims. Both initially are in personam rights; to admit the continued existence of two claims following the assumption would equip the creditor with an advantage that we doubt his one debt deserves.

We do not at this time, however, find it necessary to decide the case on this basis, for we find sufficient authority in support of his conclusion that Section 353 limits the amount by which the claims of the appellants as landlords are provable and allowable. Hippodrome Bldg. Co. v. Irving Trust Co., 91 F.2d 753 (2nd Cir.), cert, denied, 302( U.S. 748, 58 S.Ct. 265, 82 L.Ed. 578 (1937); In re Schulte Retail Stores Corp., 105 F.2d 986 (2nd Cir. 1939). In addition, Section 353 of the Bankruptcy Act reflects a Congressional desire to limit otherwise disproportionately large claims of landlords. In discussing the policy behind restricting landlord claims, the Second Circuit in Oldden v. Tonto Realty Corp., 143 F.2d 916, 920 (2nd Cir. 1944) indicated:

“Allowance in full of such claims did not seem the appropriate answer, since other general creditors would suffer proportionately, and the claims themselves would often be disproportionate in amount to any actual damage suffered. ... In truth, the landlord is not in the same position as other general creditors, and there is no very compelling reason why he should be treated on a par with them. For, after all, he has been compensated up until the date of the bankruptcy petition, he regains his original assets upon bankruptcy, and the unexpired term in no way really benefits the assets of the bankrupt’s estate.”

We therefore hold that, even should the appellants have two claims, Section 353 limits their allowability to an aggregate amount not exceeding the rent, without acceleration, reserved by such lease for the three years next succeeding the date of the surrender of the premises.

Judgment affirmed.

Elliott Moore, Asst. Gen. Counsel, Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, John S. Irving, Deputy Gen. Counsel, John D. Burgoyne, Atty., N. L. R. B., Washington, D. C., for petitioner.

CHAMBERS, Circuit Judge

(concurring):

I think the foregoing opinion is correct on the facts of this case. But absent the rent feature (future rent being limited by the Bankruptcy Act), I would still come out the same way if there were a merger of a maker and a guarantor of a note.

      . 11 U.S.C. § 753 provides, in part:
      “The claim of the landlord for injury resulting from the rejection of an unexpired lease of real estate or for damages or indemnity under the covenant contained in such lease shall be provable, but shall be limited in an amount not to exceed the rent, without acceleration, reserved by such lease for the three years next succeeding the date of the surrender of the premises to the landlord whichever first occurs, whether before or after the filing of the petition, plus unpaid accrued rent, without acceleration up to the date of surrender or reentry. ...”


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, and General Teamsters, Chauffeurs, Ware-housemen and Helpers, Local 428, etc., Intervenor, v. PONY TRUCKING, INC., Respondent.
    No. 73-1041.
    United States Court of Appeals, Sixth Circuit.
    Argued June 12, 1973.
    Decided Oct. 24, 1973.
    Marshall J. Conn, Pittsburgh, Pa., for respondent; Clifford A. Weisel, Weisel, Xides & Conn, Pittsburgh, Pa., on brief.
    Robert C. Knee, Jr., Dayton, Ohio, for intervenor; Knee, Snyder & Parks, Sor-rell Logothetis, Dayton, Ohio, on brief.
    Before McCREE and MILLER, Circuit Judges, and NEESE, District Judge.

       The Honorable Charles G. Neese, United States District Judge for the Eastern District of Tennessee, sitting by designation.

   PER CURIAM.

This is an application for enforcement of an N.L.R.B. order dated August 3, 1972 against the respondent, Pony Trucking, Inc. (hereinafter referred to as the Company).

The proceedings in this case originated on November 1, 1971 with the Union’s (General Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 428, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America) petition for certification as bargaining representative of the truck drivers of the Company. A hearing was held and the only issue involved was whether the truck drivers were employees as defined in the National Labor Relations Act, 29 U.S.C. § 152(3).

The Regional Director found that the drivers were employees of the Company and directed that an election be held. The Company submitted a request for review of the Director’s decision to the Board and it was denied. The election was held and the Union won. The Union was subsequently certified.

Following certification the Union requested the Company to bargain collectively and the Company refused on the ground that the drivers were independent contractors and not employees of the Company. The Union filed an unfair labor practice charge against the Company on March 8, 1972 and the Regional Director issued a complaint and notice of hearing to the parties. The Company’s answer reiterated its position that the drivers were not employees but independent contractors. General Counsel then filed a motion for summary judgment. The Company failed to file any response and summary judgment was granted in favor of the Union. The Board found that the Company had violated Sections 8(a)(1) and (5) of the Act by failing to bargain with the Union, thus agreeing with the Director’s finding that the drivers were employees within the meaning of the Act (one member of the Board dissenting). 198 NLRB No. 59 (1972).

The real issue before' this Court is whether substantial evidence on the record as a whole supports the Board’s finding that the drivers were employees of the Company.

In Ace Doran Hauling and Rigging Co. v. N. L. R. B., 462 F.2d 190 (6th Cir. 1972), this Court applied common law agency principles to owner-drivers working under a lease arrangement for a contract carrier and concluded that the owner-drivers were employees rather than independent contractors. To differentiate between employees and independent contractors we used a two-prong test:

The rationale behind our holding is based on both “additional controls” and the control and supervision exercised pursuant to ICC requirements. 462 F.2d at 194.

Among the additional controls exercised by the carrier here is the provision in the equipment lease agreement between the owner and the carrier which prevents the owner from subleasing his equipment without the consent of the carrier.

We are unable to distinguish Ace Dor-an from the present case and' find it to be controlling.

Upon full consideration, we are of the opinion that the order of the Board is supported by substantial evidence. Its order is, therefore, hereby enforced.