author: KOELSCH, Circuit Judge:

text:
    John Clifford HEATER, Individually and as an alleged officer of Universal Credit Acceptance Corporation and International Credit Card Corporation, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent.
    No. 73-1750.
    United States Court of Appeals, Ninth Circuit.
    Sept. 11, 1974.
    Alfred L. Young, San Mateo, Cal., for petitioner.
    Calvin J. Collier, Gen. Counsel, Harold D. Rhynedance, Jr., Asst. Gen. Counsel, and William A. E. Doying, Federal Trade Commission, for respondent.
    Before KOELSCH and DUNIWAY, Circuit Judges, and ANDERSON, Dis- ’ trict Judge.

       The Honorable J. Blaine Anderson, United States District Judge for the District of Idaho, sitting by designation.

   OPINION

KOELSCH, Circuit Judge:

John Clifford Heater petitions for review of an order of the Federal Trade Commission concerning his “Honor All Credit Cards” business. 15 U.S.C. § 45(c).

The order in question not only directs petitioner to discontinue the unfair and deceptive business practices found to have been committed by him and the several corporations which he controlled, directed and personally managed, but in addition and in effect commands him to make restitution of the moneys secured by those practices.

This refund provision is based upon and reflects a far-reaching construction of the clause in Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(b), which empowers the Commission to order a person using any unfair method or deceptive act or practice in commerce to “cease and desist from using such method of competition or such act or practice.”

The principal question on this review is this: does the Commission under the “cease and desist” provision possess power to order the refund in question. We conclude that the answer is "no.”

The thrust of petitioner’s contention is that the Commission’s remedial powers are limited to ordering the offender “to cease and desist from using such method.” He reads the “cease and desist” language as limiting the Commission’s power to prohibit future illegal or improper conduct and as a denial of power to punish or assess damages for such past conduct. He argues that restitution is unnecessary to bring to an end the misconduct found against him and that the order, stripped of subterfuge, constitutes an attempt to punish him and to award damages to private persons.

The Commission rejects petitioner’s contention as simplistic. In its view the “critical question is whether the Commission acted within its power in concluding that it was an unfair practice for Heater to retain moneys of which he had bilked the franchisees and members.” If so, the Commission concludes the order is wholly valid — it is merely the ordinary order to cease and desist from a violation of the Act. Indeed, the Commission argues, as it is the only order that will bring the illegal conduct to an end, its refund provision is manifestly within the legislative grant of broad remedial discretion. See, e. g., Jacob Siegel Co. v. Federal Trade Commission, 327 U.S. 608, 613, 66 S.Ct. 758, 90 L.Ed. 888 (1946).

Countering petitioner’s argument, the Commission asserts that the order is aimed prospectively at the continuing failure to refund, that it imposes neither a punitive sanction nor compels the payment of reliance or expectancy damages and that it serves the public interest independent of any incidental private benefit. See Porter v. Warner, 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946); Virginia Electric & Power Co. v. N. L. R. B., 319 U.S. 533, 63 S.Ct. 1214, 87 L.Ed. 1568 (1943).

In support of its position the Commission urges that retention of the moneys is properly deemed “unfair” because the practices by which they were obtained were themselves unfair and in violation of the Act, because the defrauded persons, thinking they have no legal recourse, continue to be deceived, and because of the resultant distortion in the credit card market. In short, the Commission contends that the power vested in it extends not only to prohibiting the deceptive practices themselves but to remedying the secondary effects of those practices.

We are fully aware that the Act was drawn to give the Commission wide latitude in defining the statutory proscription of “unfair” trade practices, that the Commission is not limited to condemning simply violations of antitrust laws or acts deceptive in themselves (Federal Trade Commission v. Sperry & Hutchinson Co., 405 U.S. 233, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972)), and that the Commission, in making a determination of unfairness, may properly consider these factors:

“ ‘Whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).’ Statement of Basis and Purpose of Trade Regulation Rule 408, Unfair or Deceptive Advertising and Labeling of Cigarettes in Relation to the Health Hazards of Smoking. 29 Fed.Reg. 8355 (1964).” 405 U.S. at 244 n. 5, 92 S.Ct. at 905.

As an abstract proposition, it is undoubtedly permissible to view the secondary effects of unfair or deceptive practices as “unfair.” The Commission’s contention, therefore, reflects a not implausible construction of the Act, although command of an affirmative remedial act through an order to “cease and desist” from doing that act involves, at the least, some departure from the common connotation of those words.

However, we reject that contention. The reason is fundamental. The construction placed by the Commission upon its power to define and prohibit “an unfair act or practice” would, if accepted, operate to invest the Commission with remedial powers which are inconsistent and at variance with the over-all purpose and design of the Act. In particular, it would permit the Commission to order private relief for harm caused by acts which occurred before the Commission had declared a statutory violation, and thus before giving notice that the prior conduct was within the statutory purview. Such an order, we think, is impermissible, regardless of the prospective public harm which might be prevented or the public interest served by a restitution order based upon a broader definition. In this conclusion we are guided by the legislative history of the Act. From this it appears that the critical issue around which the Congressional debate over the Federal Trade Commission Act centered was the breadth of the Commission’s power to define what would constitute “unfair acts.” Some lawmakers considered the general standard employed by the statute as it now exists to constitute an excessive delegation of legislative authority, and wanted listed acts proscribed. A principal concern over the generality of the language was the risk that a businessman would be unable to determine whether a particular practice was made unlawful until the Commission and courts gave the general language specific substance.

The Act adopted the general definition standard in order to prevent clever circumvention of a more precise definition, thereby insuring the ability of the Commission to define norms of acceptable business behavior. However, to reconcile the Commission’s broad power with the need for a specific notice to an individual who must conform his behavior to the terms of the Act, Congress limited the consequences of violation of the Act to a cease and desist order. It withheld from the Commission the power to make a determination which would expose the businessman to liability for acts occurring before the Commission gave the general definition specific meaning in a factual context. In particular, Congress rejected an amendment which provided a private damage suit based on a Commission finding of a violation of the Act. Senator Newlands, the principal sponsor of the bill and of the broad standard, expressed the argument against inclusion of a damage suit:

“We are entering now upon a new field of inquiry as to what constitutes unfair competition. This commission, and ultimately the courts, will be called upon to make nice distinctions with reference to this matter for the purpose of determining what set of facts and circumstances constitute unfair competition. Here (in the proposed damage suit) we hold this sword of Damocles above every business man in the country, and either compel him to abandon a practice which perhaps he thinks is right, or to pursue litigation to the bitter end, when we want through this instrumentality not to punish, but to secure higher standards of conduct, by rules that will be laid down by this commission and sustained by the court, and which will have an educational effect upon the commerce of the country.” 51 Cong.Rec. 13116, 63rd Cong., 2d Sess. (1914).

The broad power to define unfair acts and practices asserted as the basis for the refund order must be read in light of the contemplated non-retroactivity of a Commission decision. As Senator Newlands indicated, the Act was designed to allow the Commission to serve an educational purpose by developing a body of administrative law, through published decisions, defining unfair acts or competition in particular situations on the basis of full knowledge of the facts. The power to attach consequences to prior conduct was thought inconsistent with the Commission’s contemplated quasi-legislative and educational function. As a result, recourse for harm suffered before the Commission enters a cease and desist order was left to private suits.

The impact of the refund order in the present case illustrates the reason Congress did not give the Commission the power it seeks to exercise. So far as it appears from the record, petitioner received only a salary and loans, (some of which have been repaid), from the corporations. The corporations, which actually received the funds, are now bankrupt; the order runs only against petitioner. Aside from whether petitioner is legally liable to refund sums he only constructively received, those funds were expended by the corporations to pay the salaries of employees hired to service accounts and collect member charges. Any assets of the corporations will be applied towards satisfaction of judgments in private civil suits. The Commission’s order operates as a determination that, as between petitioner and the innocent franchisees and members, petitioner ought in fairness to pay the losses out of his personal assets. Regardless of how egregious petitioner’s conduct, or how unreasonable his reliance on the legality of the operation, the Commission was not given the power to recast the consequences of conduct occurring prior to its entry of an order; Congress was unwilling to subject the operation of a business to the risk of subsequent Commission condemnation.

Moreover, the Congressionally mandated Commission procedures are designed for the determination and expression of the public interest in a particular factual context; they become suspect if employed to adjudicate private rights. The Commission acts as both prosecutor and judge in its own proceeding. The Commission issues the original complaint, a Commission attorney prosecutes, a Commission Hearing Examiner hears the evidence, makes factual findings, and makes the initial judgment of whether the Act is violated. An appeal may then be had back to the full Commission, which originally issued the complaint. Court review of the final Commission judgment is limited — the Commission’s factual findings are conclusive if supported by substantial evidence. In such circumstances there is a real likelihood that the Commission would, in furtherance of its broad institutional mandate to protect the public interest, expand unduly the common-law liability of the violator. 'We are certain that had Congress contemplated displacement of a private suit for rescission, under traditional judicial procedures, by an administrative proceeding, under § 5(b) procedures, as the remedy for fraud in the procurement of a contract, it would have said so more explicitly.

We cannot help but note that although the Act has been on the books for sixty years, this is the first time that the Commission has advanced this construction of its power to an appeals court. Of course, non-use of a power is not conclusive of its non-existence, and the Commission’s construction of the Act has never been explicitly rejected. However, statements of courts, commentators, and Congress throughout those years uniformly reflect an understanding that the Commission is without the power it seeks to exercise. Justice Brandéis, writing six years after the passage of the Act, stated:

“[I]t is necessary to bear in mind the nature of the proceeding under review. . The proceeding is not punitive. The complaint is not made with a view to subjecting the respondents to any form of punishment. It is not remedial. The complaint is not filed with a view to affording compensation for any injury alleged to have resulted from the matter charged, nor with a view to protecting individuals from any such injury in the future. The proceeding is strictly a preventive measure taken in the interest of the general public.” Federal Trade Commission v. Gratz, 253 U.S. 421, 432, 40 S.Ct. 572, 576, 64 L.Ed. 993 (1920) (dissent).

In 1948 the Court reiterated:

“[T]he effect of the Commission’s order is not to punish or to fasten liability on respondents for past conduct but to ban specific practices for the future in accordance with the general mandate of Congress.” Federal Trade Commission v. Cement Institute, 333 U.S. 683, 706, 68 S.Ct. 793, 92 L.Ed. 1010 (1948).

Henderson, in his landmark work on the Commission, wrote:

“The act does not expressly confer any general power, of the kind possessed by a court of equity, to compel restitution, or otherwise to so mold the decree as to do substantial justice under the circumstances. Of course, no damages can be awarded, or mandatory order entered. Where, therefore, the unfair act has already accomplished its purpose, and there is no occasion for repeating it, the Commission cannot give relief.” Henderson, The Federal Trade Commission 71 (1924).

And in 1971 the Senate Committee on Commerce, in reporting out a bill which would have amended the Act to empower the Commission to order refunds, noted:

“At the present time cease and desist orders have prospective application only and afford no specific consumer redress to consumers already injured.” S.Rep.No.92-269, p. 24, 92d Cong., 1st Sess. (1971).

We think the foregoing views correctly reflect the scope of the powers given the Commission. The construction the Commission places on its power to define “unfair acts and practices” impermissibly expands the Commission’s remedial power beyond that contemplated by Congress or written into the Act. Consumer protection is an important task. However, the Commission’s endeavors must be limited to the exercise of powers granted by Congress. If there exists a deficiency in the Act, the cure must come from Congress, not by judicial enlargement of the statute. “To supply omissions transcends the judicial function.” Iselin v. United States, 270 U.S. 245, 251, 46 S.Ct. 248, 250, 70 L.Ed. 566 (1926) (Brandéis, J.).

The refund provisions of the Commission’s final order are set aside.

      . Universal Credit Acceptance Corp., et al., [1970-73 Transfer Binder] Trade Reg.Rep. f 19,938 (Hearing Examiner’s Initial Decision, March 14, 1972); Universal Credit Acceptance Corp., et al., [1970-73 Transfer Binder] Trade Reg.Rep. f 20,240 (FTC Final Order to Cease and Desist, Feb. 16, 1973).

      . Accordingly, we need not, and do not, resolve various ancillary issues raised by petitioner concerning the scope of tlie order.

      . The Commission deleted the portion of the Hearing Examiner’s initial order directing petitioner to reimburse franchisees for plane fares, because, although the moneys were spent in reliance upon misrepresentations by respondents and were an element of the franchisees’ damages, they were not funds received by the respondent corporations.

      . The Commission emphasizes that petitioner’s conduct was not simply a. technical violation of the Act. “This is not a case of a business practice which, but for the guidance of the Commission in its capacity as interpreter of the broad proscriptions of § 5, could color-ably have been considered legal and proper —this is a case, in popular vernacular, of a ‘bunco’ operation, a confidence game.” (ETC Brief at 19.)

      . The Senate Committee on Interstate Commerce, when reporting out the original Act, stated in the report.:
      “The Committee gave careful consideration to the question as to whether it would attempt to define the many and variable unfair practices which prevail in commerce and to forbid their continuance or whether it would, by a general declaration condemning unfair practices, leave it to the commission to determine what practices were unfair. It concluded that the latter course would be better, for the reason, as stated by one of the representatives of the Illinois Manufacturers’ Association, that there were too many unfair practices to define, and after writing twenty of them into law it would be quite possible to invent others.”
      S.Rep.No.597, 63d Cong., 2d Sess. 13 (1914). The House Conference Report concurred in this rationale:
      “It is impossible to frame definitions which embrace all unfair practices. There is no limit to human inventiveness in this field. Even if all known unfair practices were specifically defined and prohibited, it would be at once necessary to begin over again. If Congress were to adopt the method of definition, it would undertake an endless task.” H.R.Rep.No.1142, 63d Cong., 2d Sess. 19.

      . We note that the Commission’s argument proves too much. Each of the factors relied upon to support its position can be found in some degree in all cases. As the qualitative judgment that a failure to refund is “unfair” is not readily suspectible to dispute, the PTC position supports restitution as an appropriate remedy in all cases. Moreover, the Commission’s approach would equally support the power to order damages or punitive sanctions. The failure to pay reliance or expectancy damages caused by an unfair practice might itself be considered an “unfair” practice which lias a distorting effect on the market. Were it not for jury trial complications, the Commission’s exr pansive definition of its power to remedy un-unfair practices would therefore support an order to cease and desist from not paying damages. The Commission concedes that § 5 does not grant it power to order damages.

      . See Note, “Corrective Advertising” Orders of the Federal Trade Commission, 85 Harv. L.Rev. 477, 492-93 (1971).
      It is clear that in some circumstances the Commission may order affirmative acts. See, e. fir., Federal Trade Commission v. Dean Foods Co., 384 U.S. 597, 606 n. 4, 86 S.Ct. 1738, 16 L.Ed.2d 802 (1966) (divestiture order under § 5 of FTCA rather than § 7 of Clayton Act); L. G. Balfour Co. v. Federal Trade Commission, 442 F.2d 1 (7th Cir. 1971) (divestiture); J. B. Williams Co. v. Federal Trade Commission, 381 F.2d 884 (6th Cir. 1967) (Affirmative advertising disclosure); American Cyanamid Co. v. Federal Trade Commission, 363 F.2d 757 (6th Cir. 1966) (mandatory licensing of patent).

      . See, e. g., 51 Cong.Rec. 13114 et seq. (1914).

      . Hart & Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1133 (tent. ed. 1958).

      . See 51 Cong.Rec. 13114 (1914) (remarks of Senator McCumber).

      . See 51 Cong.Rec. 11084 (1914).

      . See generally Hart & Sacks, supra, at 1136; Federal Trade Commission v. Ruberoid Co., 343 U.S. 470, 480, 72 S.Ct. 800, 96 L.Ed. 1081 (1952) (Jackon, J., dissenting).

      . Our holding denies retroactive impact to a Commission decision, at least insofar as private rights and liabilities are involved. The Commission has argued that the propriety of an order should not be determined by inquiry into whether the order has prospective or retrospective effect, see Curtis Publishing Co., [1970-73 Transfer Binder] Trade Reg.Rep. If 19,719, 21,753 (Final order to dismiss, Diet. 8800, June 30, 1971), contending:
      “Every Commission order is ‘retrospective,’ in the sense that it looks to and is based upon the causes and results of the acts found to violate the statute, and at the same time it is ‘prospective’ in the sense that its design, purpose, and effect is to dissipate any lingering effects of the past violations and to prevent their recurrence in the future.”

        Curtis, supra, at 21,757.
      We recognize that divestiture and corrective advertising orders support the Commission’s position that it has power, in order to remedy the continuing effects of violations of the Act, to order acts imposing economic costs properly attributed to conduct occurring before the conduct is declared illegal. Moreover, we recognize that there is no economic difference in the impact of those orders and a restitution order — in each case the offender loses the benefits of money expended in reliance on the legality of conduct later found illegal. Nevertheless, the two cases must be treated differently because Congress, out of reasonable fair notice considerations, chose to leave the cure of private injuries caused by violations of the Act to whatever common-law remedies existed.

      . A judgment well in excess of the remaining assets in the bankruptcy estate has already been obtained against the corporations in a class action brought on behalf of the franchisees. Petitioner was dismissed by the settlement stipulation and judgment in that ease with prejudice and is not liable personally for amounts not recoverable from the corporations.

      . The Commission argues that notice considerations (see n. 4, supra) play no part in this case because petitioner’s acts were, so patently fraudulent that he must have known his conduct violated the Act. Petitioner contends otherwise. We think it clear that Congress did not create an exception from its prohibition of retroactive sanctions for exceptional violations of the Act. Concern for the need for notice in debatable cases led to the refusal to include retroactive sanctions in general, particularly since common-law remedies were available in extreme cases.

      . We sympathize with the Commission’s problem. Under the present design of the Act, those sufficiently unscrupulous or reckless to engage in conduct clearly forbidden by the Act may do so until a cease and desist order is entered, escaping with the fruits of the violation. In many situations no individual has a sufficient interest to bring a suit for redress, and a violation of the Act may be quite profitable. See 85 Harv.L.Rev., supra n. 7, at 482-86.

      . Here, for instance, and as noted above, the Commission deleted a provision in the Hearing Examiner’s order which conditioned individual franchisee’s rights to a refund on proof of reliance, ordinarily an element of an action for rescission of a contract procured by fraud.

      , The NLRB, by § 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(c), is explicitly granted broader remedial powers than those granted the ETC. Nevertheless, the Board has interpreted its power not to extend to the award damages for violation of the Act. Ex-Cell-O Corp., 185 NLRB No. 20 (August 25, 1970).


source: Caselaw Access Project

author: WILLIAM E. MILLER, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Tommy KEMPER, Defendant-Appellant.
    No. 74-1020.
    United States Court of Appeals, Sixth Circuit.
    Argued April 17, 1974.
    Decided Sept. 20, 1974.
    Certiorari Denied Jan. 30, 1975.
    See 95 S.Ct. 810.

      Arthur L. Brooks, Lexington, Ky., on brief, for defendant-appellant.
    Eugene E. Siler, Jr., U.S. Atty., Lexington, Ky., on brief, for plaintiff-appel-lee; Kenneth P. Glover, Office of Regional Counsel, Bureau of Alcohol, Tobacco and Firearms, Cincinnati, Ohio, of counsel.
    Before McCREE, MILLER and EN-GEL, Circuit Judges.
   WILLIAM E. MILLER, Circuit Judge.

This is an appeal by the defendant, Tommy Kemper, from a conviction on Count 2 of a three count indictment charging him with violation of 18 U.S.C. § 922(g). (Transporting a firearm in interstate commerce after having been convicted of a felony.)

The defendant raises two issues on appeal: (1) whether the district court erred in refusing to strike from the indictment language descriptive of the nature of the felony for which he had been convicted despite his willingness to stipulate the prior conviction in the statutory language; and (2) whether the district court erred in refusing to grant a motion to suppress the introduction in evidence of' a firearm seized by the police from defendant’s vehicle.

The indictment was worded as follows :

COUNT 1
(T. 18 Appendix, Sec. 1202 (a)(1), U.S.C.)
THE GRAND JURY CHARGES:
That on or about the 30th day of April, 1973, in Madison County, in the Eastern District of Kentucky TOMMY KEMPER having been convicted of a felony by a court of the United States, that is, the United States District Court for the Southern District of California, on or about the 29th day of November, 1943, of the felony crime of interstate transportation of a female for the purpose of having her practice prostitution and for other immoral purposes, received, possessed, and transported in commerce and affecting commerce a firearm, that is, a Rossi .32 caliber revolver, in violation of Title 18 Appendix, Section 1202(a) (1), United States Code.
COUNT 2
(T. 18 See. 922(g), U.S.C.)
THE GRAND JURY FURTHER CHARGES:
That on or about the 30th day of April, 1973, TOMMY KEMPER having been convicted of a crime punishable by imprisonment for a term exceeding one year, that is, the interstate transportation of a female for the purpose of having her practice prostitution and for other immoral purposes on or about the 29th day of November, 1943, by the United States District Court for the Southern District of California, did transport a firearm, that is, a Rossi .32 caliber revolver, from Valdosta, in the State of Georgia, to Madison County, in the Eastern District of Kentucky.
COUNT 3
(T. 18 Sec. 922(i), U.S.C.)
THE GRAND JURY FURTHER CHARGES:
That on or about the 30th day of April, 1973, TOMMY KEMPER did unlawfully transport a stolen firearm, that is, a Rossi .32 caliber revolver, in interstate commerce, from Valdosta, in the State of Georgia, to Madison County, in the Eastern District of Kentucky, knowing and having reasonable cause to believe that the firearm was stolen.

Because of the similarity between Counts 1 and 2, the government was required to elect between them; upon the prosecution’s election to proceed on Count 2, Count 1 was dismissed. The trial court denied the defendant’s motion to strike as surplusage the language in Count 2 describing the nature of the defendant’s prior felony conviction. It is urged on appeal that this language should not have been placed before the jury because it was prejudicial in the eyes of the jurors and was not required to define the statutory offense under 18 U.S.C. § 922(g).

Rule 7(d) of the Federal Rules of Criminal Procedure makes the striking of surplusage permissive but not mandatory. The Rule is properly invoked when an indictment contains nonessential allegations that could prejudi-cially impress the jurors. The striking of language from an indictment as being surplusage addresses itself to the sound discretion of the district court. Dranow v. United States, 307 F.2d 545, 558 (8th Cir. 1962). The granting of such a motion is proper, however, only where the words stricken are not essential to the charge.

In the case before us, the material which was requested to be stricken was not a necessary element of the statutory offense in light of the defendant’s willingness to stipulate to the prior conviction itself. It should suffice for the indictment to contain language simply stating that defendant had previously been convicted in a specified court of a crime punishable by imprisonment for a term exceeding one year, omitting language descriptive of the offense.

Although the standard under Rule 7(d) has been strictly construed against striking surplusage, a serious question would arise on the facts presented here, in light of the offer to stipulate, that the district court abused its discretion in denying the motion to strike the objectionable details. The particular factual circumstances attending the prior conviction and those of the present case would appear to make the recitation to the jury in the indictment of the detailed description of the prior conviction peculiarly prejudicial. Defendant was previously convicted of the “interstate transportation of a female for the purpose of having her practice prostitution and other immoral purposes.” In the present case the defendant’s companion accused him of detaining her against her will by threatening her with a gun. The basis for defendant’s defense against the charge of interstate transportation of a weapon was that he did not know that the gun was in the vehicle until he saw it in the possession of his companion who, he claims, accompanied him of her own free will. As this testimony was essentially conflicting, the jury’s verdict was necessarily based on a weighing of the credibility of the defendant and his companion. It cannot be doubted that information that defendant had previously been convicted of transporting a woman in interstate commerce for purposes of prostitution, in the present context, would weigh heavily against the defendant in resolving such credibility issue.

Nevertheless, we are convinced that the refusal to strike from the indictment the challenged language, if error, did not affect the substantial rights of the defendant and therefore is not ground for reversal. Rule 52 F.R.Cr.P.; Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). This is true because the jury was properly made fully aware of both the fact and the nature of the prior conviction when the defendant was cross-examined with reference to it for purposes of impeachment. Defendant does not contend that he would have exercised his constitutional right not to testify if the court had granted his motion to strike.

The impeachment of a defendant by eliciting prior felony convictions is proper. The only limitation on such impeachment is that the prior conviction must be for a felony or crime involving moral turpitude. Henderson v. United States, 202 F.2d 400 (6th Cir. 1953) rehearing denied 204 F.2d 126. The fact that the prior conviction in this case was 30 years old would only go to its weight not to its admissibility. United States v. Bell, 351 F.2d 868 (6th Cir. 1965). It is proper for a trial judge in his sound discretion to prohibit detailed consideration upon cross-examination of a defendant’s involvement in other crimes. United States v. Marchesani, 457 F.2d 1291, 1297 (6th Cir. 1972). Yet we do not find that the trial judge in this case abused his discretion in allowing information as to the fact and nature of the prior felony conviction (the same prior conviction described in Count 2 of the indictment) to be placed before the jury for impeachment purposes. The court carefully instructed the jury that the prior conviction could be considered only for impeachment and not as substantive evidence.

Defendant’s second charge of error lies in the district court’s denial of his motion to suppress evidence allegedly obtained by an unreasonable search and seizure in violation of the fourth amendment.

On April 30, 1973, two officers of the Berea, Kentucky police department, received a radio message from the Kentucky state police to be on the lookout for a blue Ford traveling north on Interstate 75, bearing Georgia license tag, and having four occupants. The communication also indicated that there was a woman passenger in the vehicle, Miriam Johnson, who was being detained against her will, possibly at gunpoint. The officers set up a surveillance on Interstate 75 and around 4:30 A.M. observed defendant’s vehicle matching the radio description traveling north on Interstate 75. It was stopped, and although there were only two occupants instead of four, the name given by the woman passenger corresponded with the radio report.

Upon being stopped, defendant began to walk to the patrol car and was ordered to stop by one of the officers. He was apparently patted down for a weapon, his driver’s license examined, and he was asked to have a seat in the back seat of the patrol car. It is in dispute whether defendant Kemper was ever formally arrested at this time, but it is clear that he was to some extent in a custodial situation.

The officers found Mrs. Johnson in a distressed state and reported that she stated “he is going to kill me.” She informed the officers that Kemper had a gun in the trunk of the car. They then contacted the state police by radio and verified the description of the car and the name of the female passenger.

The keys to the trunk were obtained by one of the officers from the ignition, the trunk was searched, and a pistol was found. The officers had no search warrant. Kemper, at the request of one of the officers, and accompanied by him, drove his car to Berea. He was later charged with the offenses set forth in the indictment. Apparently the Johnson woman was driven to Berea by the other officer in the patrol ear.

While it is accepted that warrantless searches of automobiles may be valid in situations where the same search of a dwelling without a warrant would be unconstitutional, the precise parameters of the “automobile exception” are not clearly defined. The more lenient rule for automobiles was first stated in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). There the Court interpreted the fourth amendment to permit warrantless searches of moveable vehicles where officers had reason to believe that they contained contraband which might be lost before a warrant could be obtained. While it could initially have been said that Carroll is applicable to the search for and seizure of contraband only, the demise of the “mere evidence” rule in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), would suggest that the distinction between contraband and instrumentalities, on the one hand, and mere evidence on the other, would no longer be a valid limitation on the automobile exception. In Warden, police in “hot pursuit” of a suspected robber were searching a house for the man or money and found clothing of the accused which was later admitted in evidence. The Court found the application of the fourth amendment’s requirements to be the same for “mere evidence” as for fruits, instrumentalities, or contraband. Id. at 306, 307, 87 S.Ct. 1642.

Although Mr. Justice White in his separate opinion in Coolidge v. New Hampshire, 403 U.S. 443, 510, 519, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) felt that the Court had revived the distinction between contraband and mere evidence put aside by Warden, Mr. Justice Stewart in Coolidge correctly pointed out that in that case the car had been parked for some time at the defendant’s house and there was ample time to obtain a warrant. Thus, the fact that an automobile was involved did not automatically validate the search. Id. at 461-462, 91 S.Ct. 2022. Unlike the situation of a car stopped on an open highway, a car in a home garage does not present the same exigent circumstances that would support a warrantless search. The Court in Coolidge states that “no amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’ ” Id. at 468, 91 S.Ct. at 2039.

A definition of the “exigent circumstances” necessary to justify a warrant-less automobile search is also lacking in precision. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), however, provides insight into the requirements. In Chambers four men were arrested after the car in which they were riding was stopped by police shortly following the armed robbery of a service station. The arrests were the result of information provided by the service station attendant and other witnesses. The car was driven to a police station where it was searched without a warrant, resulting in the discovery of two guns and cards bearing the name of another service station robbed a week earlier.

The Chambers Court held the search at the police station valid upon the theory that the car could have been searched on the spot when stopped since “there was probable cause to search [the car] and it was a fleeting target for a search.” Id. at 52, 90 S.Ct. at 1981. There was, as the Court reasoned, little practical difference “between an immediate search without a warrant and the car’s immobilization until a warrant [could be] obtained.” Id. The Court discussed both the impracticability of following the car and searching it later and the danger of leaving it abandoned on the highway. The probable cause in Chambers was supplied by the police being informed that the robbers, dressed as those who were stopped, fled carrying guns and fruits of the crime in a car matching the description of the car stopped.

Unable to conclude that immobilizing the ear until a search warrant could be obtained was a lesser intrusion into the suspect’s rights than immediately searching the car to determine if further action was necessary, the Court stated that there is “no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” 399 U.S. at 52, 90 S.Ct. at 1981. Thus in Chambers the exigent circumstances found to exist were sufficient to justify the search even after the car was safely in the police station.

In the case at hand both the probable cause and exigent circumstances requirements needed to justify a search of the automobile without a warrant were obviously present. The officers had probable cause to believe that evidence or ( the instrumentalities of a crime could be found in the trunk of Kemper’s car. They had received a state police radio report that a car matching the description of the car Kemper was driving would be traveling north on Interstate 75 carrying a named woman being detained against her will, probably at gunpoint. A check of the license plate and the name of Kemper’s companion confirmed that this was the same vehicle. The Johnson woman appeared distressed and frightened for her life and informed the police that Kemper had a gun in the trunk. While there was no reason to know that Kemper was a convicted felon (which would make the mere interstate transportation of the weapon a crime) there was probable cause to believe that a gun was in the car and that it had been used in detaining the woman passenger against her will, thus making it an instrumentality or at least evidence of a crime. The fact that the gun turned out to be contraband or evidence of another crime does not weaken the probable cause to search for the gun as an instrumentality of the kidnapping.

In like manner the facts of this case present the “exigent circumstances” closely akin to those found in Chambers to be adequate to justify an immediate warrantless search. The ear was located on a stretch of highway outside of town where its abandonment would not have been safe. There existed a danger of evidence being lost or destroyed- if not immediately acquired. It would be an unnecessary and unreasonable burden to require one of the officers to remain with the car isolated on the highway while the other returned to town for a warrant. The fact situation in this ease should be considered in light of the fact that the transaction took place at 4:30 in the morning near a small town and that the accessibility of a magistrate for obtaining a search warrant may have been rather remote. Detaining Kemper until morning may have been more unreasonable than a search on the spot to confirm or refute the probable cause.

As pointed out in Schneckloth v. Bustamonte, 412 U.S 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), such an immediate search may even serve to be less of an imposition on the suspect: “If the search is conducted and proves fruitless, that in itself may convince the police that an.arrest with its possible stigma and embarrassment is unnecessary, or that a far more extensive search pursuant to a warrant is not justified.” Id. at 228, 93 S.Ct. at 2048.

Viewing the factual circumstances as a whole, it cannot be said that the trial judge erred in failing to grant the motion to suppress as evidence the firearm seized from defendant’s car.

Affirmed.

      . Count 1 was dismissed before trial and defendant was found not guilty on Count 3. He was given a sentence of 2 years.

      . Rule 7 (cl) provides: Surplusage. The court on motion of the defendant may strike surxüusage from the indictment or information.

      . A different question would be presented if there was no offer to stipulate to the prior felony conviction, and the government was therefore forced to prove such conviction by reliance upon a i>rior judgment containing a statement of the conviction inextricably interwoven with descriptive details of the offense. Indeed, if the defendant should not be willing to stipulate to the prior conviction, he could require the prosecution to prove such conviction by the prior record or judgment of conviction.

      . See 1 Wright, Federal Practice and Procedure § 127 (1969).

      . In Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), the Court refused to hold that it was a denial of due process to include prior convictions in the indictment to be proved for sentencing purposes where proper precautionary instructions were given by the court. While the opinion seems to imply that there may be a preference for a different procedure in the federal courts over which there is supervisory control, this would not seem to be constitutionally compelled. United States v. Craven, 478 F.2d 1329 (6th Cir.), cert. den., 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973), relied on by the prosecution, involved merely the presumption of innocence of the defendant under the firearms statute.

      . We are not bound by the stricter rules of the state of Kentucky with respect to impeachment by prior convictions. See e. g., Iles v. Commonwealth, 476 S.W.2d 170 (1972); Cotton v. Commonwealth, 454 S.W.2d 698 (1970).

      . There is disputed testimony as to whether Kemper consented to the search of the trunk.

      . Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

      . See Note, “Warrantless Searches and Seizures of Automobiles,” 87 Harvard Law Review 835 (1974) quoting Mr. Justice Rehnquist in Cady v. Dombrowski, 413 U.S. 433, 440, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) : “[T]his branch of the law is something less than a seamless web.”

      . The distinction between mere evidence and contraband has been disregarded with respect to automobile searches in several Courts of Appeals’ decisions. See e. g., United States v. Mahler, 442 F.2d 1172, 1175 (9th Cir.) cert. den., 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971); United States v. Jackson, 429 F.2d 1368, 1372 (7th Cir. 1970); see United States v. Menke, 468 F.2d 20, 23 (3rd Cir. 1972); United States v. Miles, 445 F.2d 974, 975 (5th Cir.) cert. den., 404 U.S. 912, 92 S.Ct. 231, 30 L.Ed.2d 185 (1971).

      . A number of Courts of Appeals have found exigent circumstances sufficient to justify a warrantless search of an automobile trunk. See, e. g., Dodd v. Beto, 435 F.2d 868 (5th Cir. 1970), cert. den., 404 U.S. 845, 92 S.Ct. 145, 30 L.Ed.2d 81 (1971) (officer who was informed that defendant had been concealing a gun near a store and had driven away in an automobile was held to have both probable cause to believe defendant had committed the theft and grounds to search the trunk where the officer spotted seemingly stolen goods on the back seat.); United States v. Garner, 451 F.2d 167 (6th Cir. 1970) (officers finding gun in car of defendant who had been evasive in trying to elude them were held to have probable cause and a duty to search the trunk of the car.); United States v. Chapman, 474 F.2d 300 (5th Cir.), cert. den., 414 U.S. 835, 94 S.Ct. 179, 38 L.Ed.2d 71 (1973) (probable cause and the necessary exigent circumstances to justify trunk search were found to exist where police stopped car on the highway to make a warrant arrest and found a handgun in the accompanying exploratory inspection where there was also particularized and well grounded information that the car was used in a burglary and that it contained instrumentalities and fruits of the crime.) Compare United States v. Lawson, 487 F.2d 468 (8th Cir. 1973) (inventory search of locked trunk while car was in police custody was held improper and the gun so obtained inadmissible in the prosecution of charges of unlawful transportation of a gun in interstate commerce by a convicted felon.)

      . The Court in a footnote stated that if there had been probable cause then a search warrant would not have been necessary, without discussing what facts would constitute exigent circumstances. Cases such as this may be an indication of a relaxation of the requirement for exigent circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 228, n. 10, 93 S.Ct. 2041, 36 L.Ed.2d 854.


author: PER CURIAM:

text:
    S. Victor PATURZO, Appellant, v. HOME LIFE INSURANCE COMPANY, a body corporate, Appellee.
    No. 74-1277.
    United States Court of Appeals, Fourth Circuit.
    Submitted Aug. 22, 1974.
    Decided Sept. 26, 1974.

      C. Edward Jones and Joseph P. Mc-Curdy, Jr., and Gallagher, Evelius & Jones, Baltimore, Md., on brief for appellant.
    J. Frederick Motz and Benjamin R. Civiletti and Venable, Baetjer & Howard, Baltimore, Md., on brief for appel-lee.
    Before WINTER, CRAVEN and BUTZNER, Circuit Judges.
   PER CURIAM:

Plaintiff, S. Victor Paturzo, purchased a $200,000 life insurance policy on the life of his father, Salvatore Paturzo, in which the son was named as the primary beneficiary. In March 1972 plaintiff cancelled the policy’s dividend option to apply the dividends accumulated on the policy to the additional purchase of one-year term life insurance. An ambiguity as to the effective date of cancellation, i.e., whether the additional term insurance was cancelled for March 3, 1972, to March 3, 1973, or for March 3, 1973, to March 3, 1974, was the principal dispute at trial. The effective date of cancellation was crucial because the father died on April 11, 1972. This issue was decided against plaintiff, and it is not raised on appeal. Another issue was plaintiff’s claim that under the policy he was entitled to a post-mortem dividend for the year 1972 even though the insured died during that year.

On the morning of the trial, plaintiff, pursuant to Rule 41(a)(2), F.R.Civ.P., moved for an order of voluntary dismissal without prejudice of that portion of plaintiff’s claim which concerned the post-mortem dividend. He asserted that he wished to litigate that aspect of his case in a class action which he had instituted that morning and in which he had prayed a jury trial. The motion was denied, and the issue raised on appeal is whether the lower court properly denied plaintiff’s motion voluntarily to dismiss his own claim. We conclude that the district court did not abuse its discretion in denying the motion, and we affirm.

The record shows that both parties had extensively prepared for trial when plaintiff made his motion to dismiss. The declaration in this ease had been filed in the Superior Court of Baltimore City on or about December 26, 1972. The case was removed to the district court on January 14, 1973, and the issues were joined on February 15, 1973, when defendant filed its answer. Plaintiff, having failed to make a timely demand for a jury trial, attempted to cure his waiver by filing a prayer for a jury trial on March 28, 1973, but the court denied the prayer on April 13, 1973. Cross-motions for summary judgment were filed, and were argued and denied on March 30, 1973. On June 22, 1973, a scheduling conference was held, and at this conference a trial date of October 9, 1973, was set. On September 14, 1973, a pretrial conference was held, and a pretrial order was entered. On the same date plaintiff requested that the trial be postponed because plaintiff’s principal witness would be out of town during the week of October 9, 1973. Accordingly, the trial was rescheduled for December 3, 1973, which was a Monday.

During the course of all of the above-described proceedings, plaintiff’s counsel never mentioned or suggested that he intended to dismiss the post-mortem dividend aspect of his suit and to institute a class action thereon. It was not until approximately 4:00 p.m. on the Friday afternoon preceding trial that plaintiff’s counsel informed defendant’s counsel of this intention. It was disclosed during settlement negotiations, and it was not until the morning of the trial that plaintiff filed his motion to dismiss and instituted the class action.

A court will not reverse the trial court’s denial of plaintiff’s voluntary motion to dismiss without prejudice except where it appears that the trial court failed to exercise its discretion, or abused its discretion. Armstrong v. Frostie Co., 453 F.2d 914 (4 Cir. 1971) (dicta); see Blue Mountain Construction Co. v. Werner, 270 F.2d 305 (9 Cir. 1959), cert. den., 361 U.S. 931, 80 S.Ct. 371, 4 L.Ed.2d 354 (1960). In Armstrong, supra, we said:

Once the defendant has filed an answer or a motion for summary judgment, which normally is marked by extensive preparation, granting dismissal without prejudice becomes discretionary with the court. Fed.R.Civ. P. 41 (a) (2). 453 F.2d at 916.

Furthermore, we found that the denial of a plaintiff’s motion voluntarily to dismiss would not have been an abuse of discretion “in view of the advanced stage of the proceedings.” Id. at 916. Likewise in Young v. John McShain, Inc., 130 F.2d 31 (4 Cir. 1942), we indicated our hesitancy in granting a voluntary dismissal where the action has progressed to or beyond the trial stage. See also Shaffer v. Evans, 263 F.2d 134 (10 Cir. 1958) (no abuse of discretion in denying motion where action had been pending for six months, depositions had been taken, pretrial conference had been held, defendant had arranged for medical testimony, and case was apparently ready for trial); Rollinson v. Washington Nat. Ins. Co., 176 F.2d 364 (4 Cir. 1949) (where plaintiff had amended complaint three times, had had a pretrial conference and had been served with answers to interrogatories).

The transcript in this case shows that the district court appropriately considered the fact that plaintiff had waived his right to a jury trial by failure to. make a timely demand, and that plaintiff was requesting a jury in his newly-filed action. Understandably, the court below did not want to permit plaintiff to use indirect methods to obtain those rights he had forfeited through his own lack of diligence. See Second-79th St. Co. v. United States Steel Corp., 22 F.R.D. 98 (S.D.N.Y.1958).

Overall, we conclude that the district court did not abuse its discretion in its denial of plaintiff’s motion to dismiss.

After denial of his' motion, plaintiff refused to go forward with his proof on the post-mortem claim. Apparently, counsel was operating under the mistaken belief that he would waive his right to appeal the denial of his motion if he fully litigated the issue at trial. This apparent assumption was erroneous. The denial of plaintiff’s motion was interlocutory and unappealable. When plaintiff’s motion was denied, plaintiff was required either to present his proofs or to suffer the consequences of failure to do so. Blue Mountain Construction Co. v. Werner, 270 F.2d 305 (9 Cir. 1959), cert. den., 361 U.S. 931, 80 S.Ct. 371, 4 L.Ed.2d 354 (1960). Since plaintiff adduced no evidence to support his dividend claim, the district court appropriately decided it against him.

We deny plaintiff’s motion for summary reversal, grant defendant’s motion for summary affirmance and affirm the judgment from which the appeal is taken. We find it unnecessary to hear oral argument.

Affirmed.


author: MOORE, Circuit Judge.

text:
    The MESCALERO APACHE TRIBE, an Indian Tribe, Plaintiff-Appellant, v. BURGETT FLORAL COMPANY, a corporation, et al., Defendants-Appellees.
    No. 73-1870.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted by Appellant only July 10, 1974.
    Decided Sept. 3, 1974.

      F. Randolph Burroughs, Alamogordo, N. M. (Fettinger and Burroughs, Alamogordo, N. M., on the brief), for plaintiff-appellant.
    S. Thomas Overstreet, Alamogordo, N. M., for defendants-appellees.
    Before LEWIS, Chief Judge, and MOORE and DOYLE, Circuit Judges.

       II011. Leonard P. Moore, Senior United States Circuit Judge for the Second Circuit, sitting by designation.

   MOORE, Circuit Judge.

This is an appeal from the dismissal for want of federal jurisdiction of a complaint to recover for trespass brought by an Indian Tribe in the United States District Court for the District of New Mexico. The underlying facts in this case are simple. Appellant, the Mescalero Apache Tribe, recognized by the United States by treaty (Treaty of July 1, 1852 10 Stat. 979) and organized pursuant to the Indian Organization Act, 25 U.S.C. § 476 (1970) alleged that the appellees, local companies and an individual engaged in arborculture, entered on their reservation without permission and destroyed trees thereon, causing damage to appellant in the amount of 85,00o. Jurisdiction in Federal Court was asserted under 28 U.S.C. § 1362 (1970) which states;

The district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States.

The District Court, however, dismissed the complaint for failure to state a proper federal question under this section. We reverse.

The District Court’s order was without opinion, but it may be surmised that its reasoning was similar to that employed by the Second Circuit in the case of Oneida Indian Nation v. Oneida, 464 F.2d 916 (2d Cir. 1972), rev’d, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974), in affirming the dismissal of a similar action. Here it was contended that :

[Plaintiffs’] success depends upon establishment of their right to possession, [citation omitted] and the action is thus basically in ejectment. As to this, a long and unbroken line of Supreme Court decisions holds that the complaint in such an action presents no federal question even when a plaintiff’s claim of right or title is founded on a federal statute, patent or treaty.

464 F.2d at 920.

However, the Supreme Court on certio-rari distinguished that unbroken line and, in reversing, stated:

In the present case, however, the assertion of a federal controversy does not rest solely on the claim of a right to possession derived from a federal grant of title whose scope will be governed by state law. Rather, it rests on the not. insubstantial claim that federal law now protects, and has continuously protected from the formation of the United States, possessory rights to tribal lands, wholly apart from the application of state law principles which normally and separately protect a valid right of possession.

414 U.S. at 677, 94 S.Ct. at 782.

The Court then' concluded that the appellants had stated a proper cause of action under 28 U.S.C. § 1331 (1970).

In relating Oneida to the present case, it seems clear that the Mescalero Apache Tribe is an Indian Tribe for the purposes of § 1362. It further seems clear that the scope of matters arising “under the Constitution, laws, or treaties of the United States” should be at least as broad under § 1362 as under § 1331. Therefore, for appel-lees to prevail, they must sufficiently distinguish the cause of action in Oneida, ejectment, from trespass, the one at bar, so as to provide a rationale for different jurisdictional conclusions. This, in our opinion, cannot be done.

Appellees argue that in Oneida the Indians were not in possession nor was their right to title clear — hence, there was a special federal interest in returning them to their rightful position as owners. However, in the present ease the Indians have possession of their reservation and their title is clear and undisputed. All they now seek is compensation for damages allegedly suffered by actions committed against their possessory interests.

We do not find this distinction between these possessory rights (ejectment), as distinguished from trespass, persuasive. The Supreme Court in Oneida spoke of protecting “possessory rights t'o tribal lands.” 414 U.S. at 677, 94 S.Ct. 772. Almost by definition the right to sue in trespass is a “possessory right,” W. Prosser, Law of Torts § 13 at 68-69 (4th ed. 1971), for if there is no such right, one’s possession can be protected only by force. In point of fact ejectment developed out of trespass and presently remains strongly akin to it. 1 Harper and James, J., The Law of Torts, 6-7 (1956); 7 W. Holdsworth, A History of English Law, 7 (3rd ed. 1923). We therefore can see no reason why the present case should merit different treatment than that mandated by the Supreme Court in Oneida.

The decision of the District Court is therefore reversed and the case remanded for further proceedings in accordance with this opinion.

      . Appellant initially sought actual damages in the amount of $1,674.87 and punitive damages of twice that amount. However, by an amended complaint the first figure was increased to $5,000 and the second to $10,000.

      . The District Court’s order was entered prior to the decision of Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974).

      . Wp note that there has been some argument that § 1362 should be construed more broadly than § 1331. Oneida Indian Nation v. Oneida, 464 F.2d 916, 924-925 (2d Cir. 1972) (Judge Lumbard, dissenting).