author: WINTER, Circuit Judge:

text:
    Richard Dewayne McCLOUD, Appellant, v. V. Lee BOUNDS, Director of North Carolina Dept. of Corrections, Appellee.
    No. 71-1908.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 8, 1972.
    Decided March 16,1973.
    Michael K. Curtis, Greensboro, N. C., court-appointed (Smith, Patterson, Fol-lín & Curtis, Greensboro, N. C., on brief), for appellant.
    Edwin M. Speas, Jr., Associate Atty. N. C., Raleigh, N. C. (Robert Morgan, Atty. Gen. N. C., Jacob L. Safron, Asst. Atty. Gen. N. C., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and WINTER, Circuit Judge.
   WINTER, Circuit Judge:

Richard Dewayne McCloud, a North Carolina state prisoner, appeals from the district court’s denial of habeas corpus relief. Convicted on charges of safe-cracking, possession of burglary tools, breaking and entering, larceny, and receiving stolen property, he asserted that the state’s primary evidence against him was a confession, that the police obtained his confession as a direct fruit of an illegal search, and that it was therefore inadmissible under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The district court held that the confession was the product of “an intervening independent act of free will” which dissipated the taint of the illegal search. We cannot agree. We conclude that the district court’s finding was clearly erroneous and accordingly reverse and direct the writ to issue.

I.

During the evening of March 27-28, 1969, a church in Greensboro, North Carolina was burglarized. At 3:25 that morning, the police chased and apprehended a car driven by Jack Jordan. His unidentified passenger eluded capture. The police found proceeds of the church burglary and burglar’s tools in Jordan’s car.

At 5:00 that morning, the police awoke McCloud at a motel where he was staying with his girlfriend. They inquired if he knew Jordan, who was registered in a nearby room. McCloud replied affirmatively. Although the policemen had no warrant, they began to search McCloud’s room. When McCloud objected, they left. The police soon returned, still without a warrant, arrested McCloud and the girl for occupying a room for immoral purposes, and completed their search of the room. Among the items seized in McCloud’s motel room was a peculiarly identifiable coin collection, which had been taken from the home of one Hill in Virginia. On direct appeal, the Supreme Court of North Carolina held, and the state here concedes, that the police had neither a warrant nor probable cause for the search, seizure, and arrest, and that they were therefore illegal.

Later on the 28th, McCloud’s bond was fixed at $75,000, an amount which he could not obtain. After administering Miranda warnings, the police questioned him for thirty minutes without result. McCloud remained in jail during the ensuing weekend. On March 31, the police again advised McCloud of his constitutional rights and resumed questioning him. This interrogation lasted about three hours. During this session, the interrogating officers sent Mc-Cloud’s girlfriend and Jordan into the interrogation room to persuade him to confess. Then Officer Welch referred to the illegally seized coin collection and told McCloud that Hill, from whose home it had been stolen, was waiting in the next room to identify the collection. According to Officer Melton’s testimony, McCloud then “made the statement that if we would bring the man in there and he identified the coins that he would tell us all about the burglary and any other burglaries that we wanted to ask him about.” The coins were brought in and Hill demonstrated to McCloud that he could identify them. McCloud then confessed to the Greensboro church burglary, the Hill burglary, and other burglaries.

II.

In Wong Sun, the Supreme Court held that the “fruit of the poisonous tree” doctrine, which forbids putting illegally seized evidence to any use, applies to verbal as well as tangible evidence. 371 U.S. at 485, 83 S.Ct. 407. See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920). Thus, if the police use illegally seized evidence to induce or trigger a confession, the confession is not admissible against one who has standing to complain of the illegal search. United States v. Marrese, 336 F.2d 501, 504 (3 Cir. 1964); United States v. Rachel, 360 F.2d 858, 861 (7 Cir. 1966). See Fahy v. Connecticut, 375 U.S. 85, 89-91, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). The test for determining the admissibility of the confession is “whether,- granting establishment of the primary illegality, the evidence . has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417, quoting Maguire, Evidence of Guilt, 221 (1959).

In Wong Sun, the police arrested Wong Sun without probable cause. He was arraigned and then released on his own recognizance. Several days later, he returned to police headquarters, was interrogated, and made an incriminating statement. The Court held that this statement was not inadmissible fruit of Wong Sun’s illegal arrest because: “On the evidence that Wong Sun had been released on his own recognizance after a lawful arraignment, and had returned voluntarily several days later to make the statement, we hold that the connection between the arrest and the statement had ‘become so attenuated as to dissipate the taint.’ ” 371 U.S. at 491, 83 S.Ct. at 419, quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). See United States v. Close, 349 F.2d 841 (4 Cir. 1965), cert. denied 382 U.S. 992, 86 S.Ct. 573, 15 L.Ed.2d 479 (1966).

In the instant ease, the state urges the court to conclude that Mc-Cloud was, in effect, an “honest thief.” The state posits that McCloud’s expression of willingness to confess if Hill identified the coins was a voluntary sporting “wager” which he honorably lost, and that this “wager” constituted an independent intervening act of free will which dissipated the taint of the illegal search. However, the facts do not support this imaginative scenario. Unlike Wong Sun, McCloud had not been released from jail. He did not return voluntarily to make a statement. The police had been interrogating him for three hours. They had Hill waiting in the next room. They knew Hill could identify the coin collection. They confronted McCloud with Hill, with the illegally seized coins and with Hill’s identification of them, strong links to the Virginia burglary. While McCloud conditioned his confession on Hill’s ability to identify the illegally seized coins, the totality of the circumstances belies the conclusion that McCloud, twice-convicted of burglary, voluntarily risked prison to comply with a so-called “voluntary wager.”

McCloud’s statement, whether a wager or an expression of resignation, was hardly an intervening independent act of free will which dissipated the taint of the illegal search. Rather, McCloud’s confession was “come at by exploitation” of the illegally seized coins, and therefore was inadmissible. Fahy, 375 U.S. at 90-91, 84 S.Ct. 229; Jacobs v. Warden, Maryland Penitentiary, 367 F.2d 321, 323 (4 Cir. 1966); Young v. State of Maryland, 455 F.2d 679, 684-685 (4 Cir.) (Sobeloff, J., dissenting), cert. denied 407 U.S. 915, 92 S.Ct. 2450, 32 L.Ed.2d 691 (1972); Amador-Gonzalez v. United States, 391 F.2d 308, 318 (5 Cir. 1968); Barnett v. United States, 384 F.2d 848, 861-862 (5 Cir. 1967). See Hall v. Warden, 313 F.2d 483, 490 (4 Cir. 1963) (in banc); Ruiz v. Craven, 425 F.2d 235 (9 Cir. 1970). See also Har-ney v. United States, 407 F.2d 586 (5 Cir. 1969).

Nothing in Close, supra, compels a contrary conclusion. Close refused to apply Wong Sun to statements which the defendant made to an F.B.I. agent while in a state jail following an allegedly illegal state arrest on another matter. The statements consisted of an alibi, which was later contradicted at trial. We held the statement admissible. We construed Wong Sun to hold that “a statement which is shown to have been freely and voluntarily made without coercion, either physical or psychological, may be thereby purged of any stigma of illegality .. . .” 349 F.2d at 851. See Rogers v. United States, 330 F.2d 535, 540-542 (5 Cir.), cert. denied 379 U.S. 916, 85 S.Ct. 265, 13 L.Ed.2d 186 (1964). And we found “abundant evidence” that the statements were “freely and voluntarily made.” 349 F.2d at 851.

In the instant case, the only evidence of voluntariness is the state’s rather imaginative post hoc explanation of McCloud’s statement. The controlling fact is that the police officers confronted McCloud with the tainted coins and used them, and evidence derived from them, to induce his confession. The manifest causal relationship between the coins and McCloud’s confession is the dispositive factor which distinguishes this case from those holding that mere detention following an illegal arrest does not necessarily operate to exclude a voluntary confession made during that detention.

III.

The judgment of the district court is therefore reversed and the case is remanded with directions to issue the writ. Its effect may, of course, be stayed for a reasonable period to permit the state to try McCloud anew if the state be so advised.

Reversed.

      . State v. McCloud, 276 N.C. 518, 173 S.E.2d 753 (1970).

      . The bond was set at this high amount because McCloud had a record of two burglary convictions and because the police suspected him of a whole skein of burglaries.

      . McCloud denied saying “anything like that.” Officer Welch’s version of the events corresponds substantially with Officer Melton’s:
      He [McCloud] stated that if . Mr. Hill would step in there and identify some money, he would tell us anything.
      After Jordan went out and I talked to him further, that is when he stated that if Mr. Hill could identify the merchandise he would tell us anything we wanted to know.

      . The state has not challenged the applicability of Wong Sim to the states. The Supreme Court has indicated that Wong Sun’s exclusionary rule is constitutionally grounded and therefore applicable to the states. Fahy v. Connecticut, 375 U.S. 85, 90-91, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). See Traub v. Connecticut, 374 U.S. 493, 83 S.Ct. 1899, 10 L.Ed.2d 1048 (1963) (Per Curiam); Jacobs v. Warden, Maryland Penitentiary, 367 F.2d 321, 323 (4 Cir. 1966); Young v. State of Maryland, 455 F.2d 679, 683 (4 Cir.) (Sobeloff, J., dissenting on other grounds), cert. den. 407 U.S. 915, 92 S.Ct. 2450, 32 L.Ed.2d 691 (1972); United States v. Myers, 398 F.2d 896, 899 (3 Cir. 1968); Ruiz v. Craven, 425 F.2d 235, 236 (9 Cir. 1970); Phelps v. Decker, 401 F.2d 232, 235 n. 7 (5 Cir. 1968) and cases cited therein. Cf. Parker v. North Carolina, 397 U.S. 790, 796, 90 S.Ct. 1458, 25 L. Ed.2d 785 (1970). Note however that doubt has been expressed as to whether this issue has been definitively settled. Clewis v. Texas, 386 U.S. 707, 711 n. 7, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967) (expressly reserving the question); Outing v. State of North Carolina, 383 F.2d 892, 918-919 (4 Cir. 1967) (Kaufman, District Judge, dissenting); Ralph v. Pepersack, 335 F.2d 128, 136 n. 11 (4 Cir. 1964).

      . Wong Sun, 371 U.S. at 486 n. 12, 83 S.Ct. 407, and cases cited therein, point out that not every voluntary act is sufficient to cure an unlawful acquisition of evidence, but in Close, we thought the voluntary act sufficient.

      . See Close, supra; Mefford v. Warden, 413 F.2d 439 (4 Cir. 1969) (Per Curiam), vacated on other grounds, 408 U.S. 935, 92 S.Ct. 2856, 33 L.Ed.2d 750 (1972), aff’g, 270 F.Supp. 745 (D.Md.1967); Thompson v. Warden, 413 F.2d 454 (4 Cir. 1969) (Per Curiam), cert. denied 397 U.S. 950, 90 S.Ct. 972, 25 L.Ed.2d 131 (1970); Rogers, supra. But see Gatlin v. United States, 117 U.S.App.D.C. 123, 326 F.2d 666, 672 (1963) and United States v. Burhannon, 388 F.2d 961 (7 Cir. 1968), supporting the view that an illegal arrest necessarily operates to exclude a confession made during subsequent detention.


source: Caselaw Access Project

author: KENT, Circuit Judge.

license: Public Domain

text:
    Eugene A. WAHL and Vibra Screw, Inc., Plaintiffs-Appellants, v. VIBRANETICS, INC., Defendant-Appellee.
    No. 72-1661.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 13, 1972.
    Decided March 2, 1973.

      Dugald S. McDougall, Chicago, Ill., J. Leonard Walker, Louisville, Ky., Dugald S. McDougall, Chicago, Ill., on brief for plaintiffs-appellants; Percy Foreman, Houston, Tex., of counsel.
    Thomas F. McWilliams, Chicago, Ill., for defendant-appellee, M. Brooks Senn, Louisville, Ky., Thomas F. McWilliams, Chicago, Ill., on brief for defendant-appellee; Brown, Miller, Alagia & Senn, Louisville, Ky., Mann, Brown, McWilliams & Bradway, Chicago, Ill., of counsel.
    Before MILLER and KENT, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
   KENT, Circuit Judge.

On March 16, 1965, plaintiff Wahl [the parties will be referred to as in the court below] was granted Patent No. 3,173,583 on a “bin activator,” a device which attaches to the bottoms of storage bins or hoppers and by imparting vibrations to the hoppers or bins, facilitates the flow of powdered, granular, pulverized or like material out of the bins or hoppers.

On November 1, 1965, plaintiffs commenced an action against Carrier Manufacturing Co., Inc. in the United States District Court for the Southern District of Indiana, alleging infringement óf that patent. Trial of the case commenced on November 6, 1967, and continued through November 14, 1967, when it was adjourned until August 19, 1968, to enable the plaintiffs to prepare rebuttal to the proofs offered by the defendant. Such proofs were offered on August 19, 1968. On November 5, 1969, United States District Judge William E. Steckler, Chief Judge of the Southern District of Indiana, entered judgment for the defendant, after concluding that the patent in suit was invalid. The judgment of the District Court was affirmed, Wahl v. Carrier Mfg. Co., 452 F.2d 96 (7th Cir. 1971), and the application for certiorari was denied, 405 U.S. 990, 92 S.Ct. 1255, 31 L.Ed.2d 457 (1972). On December 18, 1970, after judgment of invalidity had been entered in the District Court for the Southern District of Indiana, the present suit for infringement of the same patent was filed in the United States District Court for the Western District of Kentucky. The defendant filed a timely answer claiming invalidity and lack of infringement, and on December 21, 1971, amended its answer to include a claim that the plaintiffs were estopped from suing for infringement by the prior Indiana judgment of invalidity.

Subsequently, defendant filed a motion for summary judgment based upon the same claim of estoppel. The claim of estoppel relies upon the doctrine announced by the Supreme Court in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). In support of its motion for summary judgment, based upon estoppel, the defendant attached a copy of the transcript (1,300 pages) and record of the litigation in the United States District Court for the Southern District of Indiana, and a certified copy of the 600-page appendix, filed in the United States Court of Appeals for the Seventh Circuit. Plaintiffs filed nothing in opposition to the motion for summary judgment except a reply which alleged various deficiencies and errors in the Indiana litigation, which plaintiff claimed made the application of the Blonder-Tongue doctrine inappropriate.

The District Judge examined the transcript and record of the Indiana litigation and granted the motion for summary judgment. From that action this appeal is taken.

In this Court plaintiffs claim to be entitled to a trial to determine whether there were deficiencies in the prior Indiana litigation which would remove the instant case from the application of the doctrine enunciated in Blonder-Tongue. At the outset we point out that plaintiffs’ entire reliance is on the pleadings and that nothing in support of such pleadings has ever been filed. Rule 56(e), Rules of Civil Procedure, provides in part:

“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

Plaintiffs not only did not respond by affidavit or otherwise to the defendant’s motion for summary judgment in any manner contemplated by Rule 56(e), but filed only a reply which does not “set forth specific facts showing that there is a genuine issue for trial,” as required by Rule 56(e). We are, therefore, only concerned with one issue: Was summary judgment appropriate under the circumstances of this case ?

In Triplett v. Lowell, 297 U.S. 638, 56 S.Ct. 645, 80 L.Ed. 949 (1936), in discussing estoppel in patent litigation, the Supreme Court said at page 644, 56 S.Ct. at page 648:

“We conclude that neither the rules of the common law applicable to successive litigations concerning the same subject matter, nor the disclaimer statute, precludes relitigation of the validity of a patent claim previously held invalid in a suit against a different defendant.”

In discussing the Triplett rule in Blonder-Tongue, the Supreme Court said:

“Thus, we conclude that Triplett should be overruled to the extent it forecloses a plea of estoppel by one facing a charge of infringement of a patent that has once been declared invalid.” 402 U.S. at 350, 91 S.Ct. at 1453.

The Court, however, made it clear that mere prior adjudication of invalidity in and of itself would not necessarily require a termination of a subsequent lawsuit between different parties. In that connection the Court stated:

“Moreover, we do not suggest, without legislative guidance, that a plea of estoppel by an infringement or royalty suit defendant must automatically be accepted once the defendant in support of his plea identifies the issue in suit as the identical question finally decided against the patentee or one of his privies in previous litigation. Rather, the patentee-plaintiff must be permitted to demonstrate, if he can, that he did not have ‘a fair opportunity procedurally, substantively and evidentially to pursue his claim the first time.’ Eisel v. Columbia Packing Co., 181 F.Supp. 298, 301 (Mass. 1960). This element in the estoppel decision will comprehend, we believe, the important concerns about the complexity of patent litigation and the posited hazard that the prior proceedings were seriously defective.
Determining whether a patentee has had a full and fair chance to litigate the validity of his patent in an earlier case is of necessity not a simple matter. In addition to the considerations of choice of forum and incentive to litigate mentioned above, certain other factors immediately emerge. For example, if the issue is nonobviousness, appropriate inquiries would be whether the first validity determination purported to employ the standards announced in Graham v. John Deere Co., [383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545] supra; whether the opinions filed by the District Court and the reviewing court, if any, indicate that the prior ease was one of those relatively rare instances where the courts wholly failed to grasp the technical subject matter and issues in suit; and whether without fault of his own the patentee was deprived of crucial evidence or witnesses in the first litigation. But as so often is the case, no one set of facts, no one collection of words or phrases, will provide an automatic formula for proper rulings on estoppel pleas. In the end, decision will necessarily rest on the trial courts’ sense of justice and equity.” 402 U.S. at 332-334, 91 S.Ct. at 1444 (footnotes omitted).

Boutell v. Volk, 449 F.2d 673, 678 (10th Cir. 1971) the test was summarized as follows:

“Blonder-Tongue . . . [simply held] that adjudication of invalidity of a patent following a full and fair hearing in which the defender of the patent had an adequate opportunity to present his case in support of validity would be final.”

It is apparent from these quotations that there must be something more than proof of existence of prior litigation of the same patent, resulting in an adjudication of infringement, before a patentee may be foreclosed from trial of a subsequent action involving the same patent. Under the principles announced, necessarily, there must be a balancing of the equities on a case by case basis.

Plaintiffs’ first contention is that the District Court for the Southern District of Indiana, the Court of Appeals for the Seventh Circuit, and, by implication, the Supreme Court of the United States, when it denied certiorari, “wholly failed to grasp the technical matter and issues in suit.” In the brief in this Court the plaintiffs state:

“Those courts held plaintiffs’ patent ‘anticipated’ by prior art dealing with feeder mechanisms; plaintiffs stand ready to prove the courts’ misconception of the technical subject matter by proving that feeder mechanisms are machines radically different in structure, operation, and function from the bin activators to which plaintiffs’ patent is actually directed. The District Court in this case, however, gave plaintiffs no chance to offer such proof; instead, by a process of reasoning wholly unrevealed, it held (App. 30) that the trial judge in the Carrier case made his conclusions of fact ‘with an intelligent understanding of the technical issues involved’.” Plaintiffs’ brief, p. 10.

Nothing is offered in support of this claim and the same issues were presented and disposed of in the appeal to the Seventh Circuit. Similarly, it was claimed in the Seventh Circuit that Judge Steckler did not understand the invention. In disposing of that claim the Court of Appeals for the Seventh Circuit had the following to say:

“Plaintiffs on brief state the contested issues as follows:

T. Was it reversible error for the District Court to adopt the overly simplistic definition of the Wahl invention urged by defendant on the validity issue, and then predicate its finding of anticipation (by three separate items of prior art) and obviousness on that definition rather than on a fair reading of the Wahl claims in context?’
-X- * -X- X X X
“It appears to us that issue I is stated in a rather novel manner. However stated, we think the ultimate issue is whether the court’s findings of fact are clearly erroneous. Rule 52(a) of the Federal Rules of Civil Procedure provides in part:
‘Findings of Fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.’
X X X- X -X- X
“The record refutes the suggestion that Judge Steckler was led astray. It reveals that he was keenly aware of the issues for decision and the contentions of the respective parties, and actively participated in the examination of the expert witnesses. He required each side to submit proposed findings and conclusions of law, upon which arguments were heard. At the conclusion of such arguments counsel for both sides were invited to the court’s chambers for a discussion eoneerrfing the findings and conclusions of law proposed by defendant. The court required of defendant numerous changes in its proposal, as evidenced by the court’s entry of August 6, 1969, ‘Court met with counsel in chambers concerning the finalization of findings of fact and conclusions of law and indicated to counsel its objections to the proposed findings of fact and conclusions of law tendered by defendant and made suggestions for amendments thereof. Counsel for defendant is to prepare for submission to Court amended proposed findings of fact and conclusions of law and is to provide a copy to plaintiffs before filing the same with the Court.’ Defendant’s proposal, amended to meet the requirements of the court was adopted on November 5, 1969.” 452 F.2d at 98-99.

The Supreme Court in Blonder-Tongue pointed out that the occasions when trial courts and Courts of Appeals would fail to grasp the technical subject matter of the patent in suit would be “relatively rare.” 402 U.S. 333, 91 S.Ct. 1434. In this case the District Court for the Western District of Kentucky and this Court have had available for examination the entire transcript and record of the litigation in the Southern District of Indiana, as well as the appendix filed on appeal with the Court of Appeals for the Seventh Circuit. The District Judge below examined the material available and concluded that Judge Steckler had an excellent grasp of the technical matters involved, that he applied the appropriate standards and that the plaintiff was afforded a clear opportunity to offer any and all available evidence. No claim is asserted in this Court that the plaintiffs have any additional or new evidence which they were prevented from presenting in the prior litigation.

In essence all that the plaintiffs’ counsel claims is that he could have done a better job of cross-examining Dr. Fischer, the defendant’s expert witness, than was done by plaintiffs’ counsel in the Indiana litigation. Such a claim has little appeal to this Court. We recognize that any lawyer can by hindsight form opinions as to how he might have done a better job. We do not understand this to be the thrust of the crack in the door left by Blonder-Tongue. Plaintiffs presented criticism of Dr. Fischer’s testimony to the Seventh Circuit Court of Appeals which disposed of that claim in the following manner:

“Plaintiffs in their reply brief state that the district court did not ‘understand the concept of Wahl’s claimed invention and how it differs from the prior art,’ and that he was ‘deceived * * * aided and abetted by a Professor Fischer, whose professorial charisma was relied on by defendant to legitimatize defendant’s courtroom ploy.’
* * * * *
“It was that court’s function, not ours on review, to weigh the conflicting testimony and judge of the credit to be given the witnesses. We are satisfied that the court properly performed its duty in this respect. Certainly we cannot hold that the finding was clearly erroneous under Rule 52(a).” 452 F.2d at 99, 102.

We, therefore, conclude that these plaintiffs “had a full and fair chance to litigate the validity of their patent” in the Southern District of Indiana.

In the Indiana litigation plaintiffs made the choice of the forum in which they desired to assert the validity of their patent. It appears from the record that Carrier Manufacturing Co., Inc., the defendant in the Indiana case, is a Kentucky corporation having its principal place of business at Jefferson-ville, Indiana. Thus under the provisions of Title 28 U.S.C. § 1391(c), and Title 28 U.S.C. § 1400(b) the action could have been instituted in a District Court in Kentucky or in the District Court in Indiana. It may be that plaintiffs selected the Indiana forum because they had previously prevailed in patent litigation against the same defendant and involving similar machinery and technology before the same judge. Wahl v. Carrier Mfg. Co., 358 F.2d 1 (7th Cir. 1966). Presumably, the plaintiffs had no complaint about Judge Steckler’s understanding of patent litigation at the time of the prior case.

We recognize that summary judgment, Rule 56, Rules of Civil Procedure, should be granted only in the exercise of great restraint. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); C. F. W. Construction Co. v. Travelers Insurance Co., 363 F.2d 557 (6th Cir. 1966). However, summary judgment is proper where a trial would serve no useful purpose. Miller v. Western Board of Adjusters, Inc., 427 F.2d 175 (9th Cir. 1970); Applegate v. Top Associates, Inc., 425 F.2d 92 (2nd Cir. 1970); Bland v. Norfolk and Southern Railroad Co., 406 F.2d 863 (4th Cir. 1969); and as said by this Court in Rogers v. Peabody Coal Co., 342 F.2d 749, 751 (6th Cir. 1965):

“It is clear that where a moving party supports his motion for summary judgment by appropriate means, which are uncontroverted, the trial judge is fully justified in granting relief thereon.”

Plaintiffs’ counsel suggest in their briefs that they should have been accorded a trial for the purpose of determining whether or not the prior trial in the District Court in Indiana, which resulted in the adjudication of invalidity, awarded to the plaintiffs a full and fair opportunity under appropriate procedure to present all evidence and witnesses in support of the patent in suit. If we were to accept this theory the whole purpose of the rule laid down by the Supreme Court in Blonder-Tongue would be defeated. We, therefore, hold that such a trial is neither necessary nor advisable in a case such as this where the court in which the subsequent action is pending has available the record from the prior litigation from which it can determine whether the claim of estoppel rests upon a firm foundation based on the requirements laid down in Blonder-Tongue.

The judgment of the District Court is affirmed.

      . 28 U.S.C. § 1391(c). “A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.”

      . 28 U.S.C. § 1400(b). “Any civil action for patent infringement may be brought in tlie judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.”


author: PER CURIAM:

text:
    Elba ORTIZ, Individually and on behalf of all others similarly situated, Appellants, v. Theodore ENGELBRECHT et al.
    No. 71-2066.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 16, 1973.
    Decided March 2, 1973.
    Theodore A. Gardner, Timothy K. Madden, Hudson County Legal Services, Jersey City, N. J., for appellants.
    Virginia Long Annich, Robert A. Goodman, Trenton, N. J., for appellees.
    Before ADAMS, ROSENN and HUNTER, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

In this action, plaintiff, individually and on behalf of the class, seeks the convocation of a three-judge district court, pursuant to 28 U.S.C. §§ 2281 and 2284, for the purpose of having the service of process “tacking provision” of the New Jersey Statute R.S. 2A:18-54 N.J.S. declared unconstitutional and for the purpose of enjoining the defendants from employing those provisions against the plaintiff and the class represented by the plaintiff. This “tacking provision” provides that,

“. . . when admission to the premises is denied or the tenant or occupant and all members of his family above the age of 14 years are absent from the premises, or there is no person actually occupying them, the officer or other person may post or affix a copy of the same [notice or complaint] upon the door or other conspicuous part of such premises. Such posting shall be deemed to be lawful service.”

In an amended complaint, the plaintiff, an indigent tenant, subject to a state dispossess default judgment, alleged that she never received any service in the state dispossess matter. The notice apparently had been tacked on the door of her apartment, pursuant to R.S.2A:18-54 N.J.S. For reasons not completely clear, the notice had not been brought to her attention. Mrs. Ortiz further alleged that she represented a class comprised of “all citizens who might now or in the future be served with process in a summary eviction proceeding in accordance with the ‘tack on’ provision of New Jersey Statute 2A: 18-54 and thus be threatened with the possibility of never receiving notice of the pendency of the action against them.”

The district court denied the application for the convening of a three-judge court and dismissed the original and the amended complaints.

Since it is clear from the briefs and oral argument that George F. Kugler, Jr., the Attorney General of the State of New Jersey, in no way participated in the implementation of the Act in question and in no way threatens such participation, the order dismissing the complaint as to the Attorney General shall be affirmed.

However, the complaint and amended complaint do set forth a valid cause of action against the landlord and the con-"staEIeT' Although the landlord has advised the Court that he has no interest in contesting the complaint filed by the plaintiff, and has in fact withdrawn his dispossess proceeding, nonetheless there is a justiciable dispute between the plaintiff, perhaps as representative of an appropriate class, on the one hand, and the remaining defendants on the other hand. Thus, this dispute raises a bona fide question regarding the constitutionality of the New Jersey Act, which is state-wide in its application. Accordingly, the matter will be remanded to the district court to determine first, the propriety of the class and whether an appropriate certificate should issue under F.R.Civ.P. 23, and second, whether the dispute, as set forth in the complaint and amended complaint, has become moot. See Indiana Employment Security Division v. Burney, 409 U.S. 540, 93 S.Ct. 883, 35 L.Ed.2d 62 (U.S. Jan. 17, 1973); Washington v. Lee, 263 F.Supp. 327 (M.D.Ala.1966), aff’d 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968) (per curiam). If the district court determines that a certificate should issue under Rule 23 and that the dispute is not moot, then the district court should request that a three-judge court be convened pursuant to 28 U.S.C. § 2281 and § 2284.

Accordingly, the dismissal of the complaint by the district court will be reversed as to all defendants except the Attorney General and the case remanded to the district court for further proceeding consistent with this opinion.


text:
    UNITED STATES of America, Appellee, v. Paul ODDO and Lucien Madere, Appellants.
    No. 499, Docket 72-1830.
    United States Court of Appeals, Second Circuit.
    Submitted Jan. 12, 1973.
    Decided March 12, 1973.

      Before LUMBARD, KAUFMAN and MANSFIELD, Circuit Judges.
   PER CURIAM:

Paul Oddo and Lueien Madere appealed from judgments of conviction, entered on June 30, 1972, for various narcotics violations. Elliot Taikeff, Esq., who was a personally retained counsel for Madere in the district court, moved the Court of Appeals for an order under the Criminal Justice Act appointing him to represent Madere on appeal. He filed an affidavit stating that Madere was unable to afford retained counsel. By order dated November 27, 1972, Taikeff was appointed to represent Madere on appeal. Oddo was represented at trial and on appeal by his retained counsel, Rosner & Rosner. The convictions were affirmed in open court on January 10, 1973, 471 F.2d 647.

A single brief was filed in the Court of Appeals in behalf of both Oddo and Madere by Graham Hughes, Esq., indicating that he was serving “of counsel” for both appellants. When the appeal was heard by the Court on January 10, 1973, Mr. Hughes appeared and argued in behalf of both appellants. On January 12, 1973, Mr. Taikeff submitted a voucher to the presiding judge of the panel, requesting compensation for services and expenses rendered in prosecuting the appeal. The voucher indicated that one hour had been spent in court and twenty-nine hours out of court preparing the appeal. Under the Criminal Justice Act, in-court services are to be compensated at the rate of $30 per hour and out-of-court services are compensa-ble at $20 per hour. In addition, Mr. Taikeff requested payment in the amount of $143.81 for the cost of reproducing the brief. The total amount of compensation requested was $753.81.

Although the Clerk’s calendar for January 10, 1973 indicates that oral argument on this appeal lasted from 10:30 to 11:03, Mr. Taikeff requested compensation for one hour of in-eourt time. In addition, a request for compensation in the amount of $143.81 for the cost of reproducing briefs in an assigned counsel matter, where the general practice is to request permission to file four typewritten briefs, seemed most unusual. In view of these and other facts, the presiding judge requested Mr. Taikeff to submit an affidavit explaining the voucher in greater detail and describing the events that led to the assignment of Mr. Hughes, who was not appointed by the Court, to serve “of counsel” on the appeal. Mr. Taikeff filed an affidavit, dated February 26, 1973, accompanied by an affidavit from Mr. Hughes, dated March 1, 1973. Mr. Taikeff stated that he had received some compensation for his work at trial in behalf of Madere. But, although Mr. Taikeff had asked this Court to appoint him to represent Mr. Madere on appeal, he states in his affidavit:

Because of my strong preference to confine my professional activities to the trial level, I contacted my personal friend and colleague Professor Graham B. J. Hughes of the New York University School of Law, a member of the Bar of this Court. I told Professor Hughes that I wanted him to write the brief for the appellant Ma-dere and that I would pay him for his work.

It appears further, that Mr. Taikeff agreed to pay Mr. Hughes at the rate of $15 per hour. Shortly thereafter, according to the affidavit submitted by Mr. Hughes, an arrangement was made between Mr. Hughes and the firm of Rosner & Rosner, Oddo’s retained counsel, under which Mr. Hughes agreed to serve “of counsel” for Oddo’s appeal as well. According to Mr. Hughes, this “seemed a suitable arrangement since the issues were the same for both appellants.” Mr. Hughes informed the firm of Rosner & Rosner of his compensation agreement with Mr. Taikeff and it was agreed that Mr. Hughes would be paid $800 for his services in behalf of the appellant Oddo. Because of this, Mr. Hughes has, sua sponte, allocated half of his time spent in preparing the appeal to Madere and it is for this work that Mr. Taikeff has requested compensation under the Criminal Justice Act. Finally, it should be noted that Mr. Taikeff, in his affidavit, requests additional compensation for three hours of out-of-court work, representing the time he spent discussing this matter with a representative of the Court, reviewing the file and correspondence to and from Mr. Madere, and preparing the affidavit to which we have referred.

As we have indicated, Mr. Hughes read the trial record, researched the case, wrote the brief and argued the appeal in behalf of Oddo and Madere. For all practical purposes he was counsel for the appellants. Mr. Hughes, however, is not on this Court’s panel of attorneys who are eligible for appointment under the plan implementing the Criminal Justice Act. Nor was there any application to the Court to appoint him under the Criminal Justice Act to represent Mad-ere pro hac vice. This type of “independent contracting” by an appointed counsel cannot be condoned by the Court. It is inconsistent with the purposes of the Criminal Justice Act and the responsibility of the Court to approve those who may accept appointments pursuant to the Act. In short, it removes control over the assignment of appointed counsel from the judicial branch and places it in the hands of private counsel. Merely for the sake of. illustration, and without implying that the following example exhausts the range of evils inherent in such a practice, we note that although compensation under the Criminal Justice Act is $30 per hour for in-court work and $20 per hour for out-of-court work, the arrangement between Mr. Hughes and Mr. Tai-keff called for payment by Mr. Taikeff of $15 per hour for services performed by Mr. Hughes. Were we to exclude the unnecessary and excessive sum requested by Mr. Taikeff for reproducing briefs, and ignore the irony of his asking to be compensated for time spent in discussing and preparing the affidavit to which we have referred, Mr. Taikeff’s request for compensation would amount to $580. Mr. Taikeff will be compensating Mr. Hughes for 30 hours of work, at $15 per hour, or a total of $450. Quite frankly, the reason for Mr. Taikeff’s belief that he is entitled to have the government subsidize him in the sum of $130 — the difference between the compensation he has requested and the sum he is actually paying Mr. Hughes — escapes us.

In light of the foregoing, Mr. Tai-keff’s request for compensation for services performed in connection with the appeal of Lueien Madere is hereby denied.


author: CLARK, Circuit Judge:

text:
    Alonzo THOMAS, Petitioner-Appellee, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellant.
    No. 72-2896.
    United States Court oí Appeals, Fifth Circuit.
    Feb. 28, 1973.
    Rehearing Denied April 2, 1973.
    Rehearing and Rehearing En Banc Denied April 23, 1973.
    Crawford Martin, Atty. Gen., Roland Daniel Green, III, Gilbert J. Pena, Asst. Attys. Gen., Austin, Tex., for respondent-appellant.
    Phoebe Lester, Houston, Tex. (Court appointed), for petitioner-appellee.
    Before ALDRICH, SIMPSON and CLARK, Circuit Judges.

       Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation.

   CLARK, Circuit Judge:

The Director of the Texas Department of Corrections appeals from a judgment granting habeas corpus relief to an inmate. As the district court correctly recognized, our holdings in Brooks v. Texas, 381 F.2d 619 (5th Cir. 1967) and Hernandez v. Beto, 443 F.2d 634 (5th Cir. 1971), fixed the applicable law. Its judgment was based upon a determination that the constitutional error of trying the petitioner in jail garb was not harmless beyond a reasonable doubt. However, Hernandez requires that this court independently review the Texas trial court record, and that perusal leads us to a different conclusion as to the probable impact on the minds of the jury of the petitioner’s proscribed prison garb appearance — we conclude it was harmless beyond a reasonable doubt. We therefore reverse.

As the opinion on rehearing in Hernandez emphasized, each case must be considered in its own factual context. 443 F.2d at 637. The procedure for such consideration by this court is also defined in that case in these terms:

“Our judgment must be based on our own reading of the record and on what seems to us to have been the probable impact of * * * [the prison garb worn by the defendant] on the minds of an average jury.” Harrington v. California, 1969, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284. Before “a federal constitutional error can be held harmless the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 1967, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705; cf. United States v. Manning, 5 Cir. 1971, 440 F.2d 1105; Simpson v. Wainwright, 5 Cir. 1971, 439 F.2d 948.

443 F.2d at 637.

The crime for which Thomas was tried was the robbery of a grocery store. The prosecution produced the following testimonial evidence. Mrs. Estelle Vaughn was employed as a cheeker-stoeker and cashier at the store. After making a positive identification of the defendant, she stated that he watched the operation of the cash registers at the store for approximately thirty minutes, then walked up to the vacant cash register in the checking line next to her own. While a cigarette stand located between her position and that cash register prevented Mrs. Vaughn from physically seeing the defendant manipulate the buttons necessary to open the cash drawer, she did see the cash drawer when it came open and she saw Thomas take money out of the drawer with both hands then audaciously step back into her line with the stolen money still visible in his fist and ask for a package of cigarettes. -Recovering from her stunned disbelief, Mrs. Vaughn confronted Thomas by saying, “What is that you have in your hand ?” and almost simultaneously turning to the store owner and saying, “Mr. Eddy, he got some money out of that cash register.”

Mr. Robert Burchfield was working as a ehecker-stoeker in the same store on this ' occasion. Upon hearing Mrs. Vaughn’s statement that a person had taken something out of a cash register, he looked in her direction and saw Thomas, whom he too positively recognized and identified, running away from Mrs. Vaughn and out the door. Burchfield, joined by others, gave chase. Approximately three or four blocks from the store Burchfield caught Thomas, who fell to the ground beside an automobile but immediately got back to his feet. Mr. Eddy Rosenzweig, the store owner, was present in the immediate vicinity of Mrs. Vaughn at the time of the theft. He also joined in the pursuit and observed the capture of Thomas by Burch-field and others. He then retraced the route along which Thomas had fled, looking for the stolen funds. He found the missing 160 dollars in cash, plus four or five checks, under the car next to which Thomas fell at the point of his capture.

Mr. A. C. Campbell, a Harris County Deputy Sheriff, happened to be alighting from his automobile in front of the grocery store as Thomas ran out the door. One of the grocery’s sacker boys hollered, “Get him, Mr. Campbell. He got our money.” Whereupon Campbell joined the tail and arrived at the point of capture in time to hear Thomas shout, “Let me go. You have got the money. Let me go.” Campbell then placed Thomas under arrest.

Although Thomas’ counsel engaged in vigorous cross-examination of each of these witnesses, none of them waivered on any detail of the above recited testimony. Thomas’ only remaining defense was an asserted variance between the indictment, and the proof. The indictment charged that the funds taken were the corporeal personal property of Mrs. Vaughn. Thomas contended that Mrs. Vaughn had not been shown to be in charge of the cash register and therefore the person shown to have been the victim of the theft was the owner of the store. He also advanced the further facile assertion that there was no showing that the money had been taken without the consent of Mrs. Vaughn or the true owner. The State’s proof did demonstrate that it was Mrs. Vaughn’s responsibility to watch the adjacent register when the checker assigned to that register was not on duty, as was the case here, and the intimation that proof of consent to pilferage had to be shown borders on the incredible. But even if the court had erroneously refused to honor these defenses, a matter we do not have to decide, such error would not reach constitutional dimensions in this ease.

Because the same judge who was reversed in Hernandez for refusing relief to that petitioner is now reversed here for granting Thomas’ application, we deem a brief factual reconciliation of these holdings no less than appropriate. In Hernandez the petitioner had been convicted of a felony manslaughter offense of having killed a 12 year old boy while driving an automobile in an intoxicated condition. Seven witnesses testified that they observed physical aspects of Hernandez’ condition after the accident which were consistent with drunkenness, i. e., the smell of alcohol, a staggering walk, and “blurred and misty” eyes. However the proof also demonstrated that Hernandez had been injured in the fatal accident, hence a jury could have believed the injury, not intoxication, caused the observed symptoms other than odor. Given this bare possibility, this court was unable to conclude that the error of infringing the presumption of innocence by trial in jail clothing carried no seed of reasonable doubt as to harm. In Thomas’ case on the other hand, we can perceive no possible inference which clouds or conflicts any essential or material fact. Rather, all such facts lead unerringly to guilt. Thus, our judgment of the probable impact of the prison garb trial on the minds of an average jury differs in the present case.

The judgment granting the writ of ha-beas corpus is reversed and the cause is remanded with directions to deny all relief sought.

Reversed and remanded.

      . The instant case was tried shortly after Brooks but before Hernandez. In view of the conclusion reached, we pretermit any ■ consideration of the retroactivity of either of these decisions.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Stuart Blackburn PERRY, Defendant-Appellant.
    No. 72-1456.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Nov. 16, 1972.
    Decided March 1, 1973.

      Floy E. Dawson, Asst. U. S. Atty. (William R. Burkett, U. S. Atty., on the brief), for plaintiff-appellee.
    Donald F. Gust, Oklahoma City, Okl. (Pierce, Couch, Hendrickson, Gust & Short, Oklahoma City, Okl., of counsel, on the brief), for defendant-appellant.
    Before BREITENSTEIN and Mc-WILLIAMS, Circuit Judges, and CHRISTENSEN, District Judge.
   PER CURIAM.

A one-count indictment charged defendant-appellant with violating 50 App. U.S.C. § 462(a) by failing to report for induction into the armed services. A jury found him guilty. The court sentenced him to five years imprisonment, and he appeals. We agree that the judgment must be reversed and the case remanded for a new trial but disagree as to the reasons therefor.

The controversy centers around the Selective Service Regulation, which appears at 32 C.F.R. § 1641.3, and reads:

“It shall be the duty of each registrant to keep his local board advised at all times of the address where mail will reach him. The mailing of any order, notice, or blank form by the local board at the address last reported by him to the local board shall constitute notice to him of the contents of the communication, whether he actually receives it or not.”

The Selective Service file contains a carbon copy of a letter bearing date of December 23, 1968, addressed to defendant at his last reported address, and ordering him to report for induction on January 2, 1969. Nothing in the file shows that the letter was returned to the local board. The defendant took the stand in his own behalf and denied receipt of the letter.

Judges Breitenstein and McWilliams believe that the presence of the carbon copy in the file is proof of neither mailing nor of time of mailing and that, on the record presented, mailing cannot be inferred from writing. Judge Christensen believes that the presence of the carbon copy in the file permits, but does not require, the fact finder to infer that the original was mailed to the addressee at the indicated address on or about the date shown on the copy. All three judges agree that the inadequacy of the proof does not require reversal with directions to dismiss because the record discloses a reasonable probability that the missing proof can be presented on a new trial.

Defendant contends that § 1641.-3 is constitutionally invalid because it denies due process of law. Judges McWilliams and Christensen agree and are in substantial accord with the reasoning of United States v. Bowen, 3 Cir., 414 F.2d 1268, 1273-1277. Judge Breitenstein disagrees. He says that the regulation, by its terms, is neither conclusive nor irrebuttable, that evidence of nonreceipt was here admitted, that the test of whether a criminal presumption is irrational or arbitrary depends on whether “the presumed fact is more likely than not to flow from the proved fact,” Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57, and that there is a rational connection between mailing and receipt. See Hagner v. United States, 285 U.S. 427, 430, 52 S.Ct. 417, 76 L.Ed. 861.

Judges McWilliams and Christensen see no conflict between their position that the regulation is invalid and the Tenth Circuit decisions in United States v. Kirkpatrick, 10 Cir., 446 F.2d 1371; United States v. Foust, 10 Cir., 457 F.2d 653, and United States v. Freed, 10 Cir., 460 F.2d 75, because those decisions do not discuss the validity of § 1641.3. Judge Breitenstein believes that, because the result in those cases depends on the validity of § 1641.3, such validity is there implied.

The invalidation of the regulatory presumption does not foreclose a new trial because of the availability of the judicial presumption of receipt after adequate proof of mailing. See Hagner v. United States, 285 U.S. 427, 430-431, 52 S.Ct. 417, 76 L.Ed. 861.

In its instructions, the trial court quoted § 1641.3 substantially verbatim and presented it as an irrebuttable presumption. Judges McWilliams and Christensen would not reach the instructions because, if the regulation is invalid, an instruction based thereon necessarily fails. Judges McWilliams and Christensen agree with Judge Breitenstein that, if the regulation is valid, the instructions are invalid because they present the regulation as an irrebuttable presumption and hence deny due process. See Tot v. United States, 319 U.S. 463, 467, 63 S.Ct 1241, 87 L.Ed. 1519, and Bollenbach v. United States, 326 U.S. 607, 611, 66 S.Ct. 402, 90 L.Ed. 350. The instructions which must be given to a jury whenever the existence of a presumed fact is submitted to the jury are stated in Rule 303(c), Rules of Evidence for United States Courts of Magistrates, prescribed by the Supreme Court on November 20, 1972. All three judges also agree that the defect was not cured by other instructions given. All three judges recognize the difficulty in reconciling their holding that the instructions are bad with the decisions in United States v. Foust, 10 Cir., 457 F.2d 653, 655-656, and United States v. Freed, 10 Cir., 460 F.2d 75, 78, but believe that those decisions are not controlling here.

The other points raised by the defendant are without merit and need not be discussed.

Reversed and remanded for a new trial.


text:
    Manuel BANDERAS-AGUIRRE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 72-3607
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 5, 1973.

      Manuel Banderas-Aguirre, pro se.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ronald F. Ederer, Asst. U. S. Atty., El Paso, Tex., for respondent-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

This appeal arises from an order of the district court denying the motion of a federal prisoner to vacate sentence pursuant to 28 U.S.C. § 2255. We affirm.

The appellant is presently serving a five year sentence, having been convicted upon his guilty plea to an indictment charging him with three counts of knowingly and unlawfully transporting aliens who had not been lawfully admitted into the United States in violation of 8 U.S. C. § 1324(a)(2). In his § 2255 motion to vacate sentence, appellant asserted as grounds for relief that the statute under which he stands convicted is unconstitutionally vague; that his prosecution under the statute presumes knowledge on his part that the persons transported had illegally entered the United States; that he was denied counsel at all stages of the proceedings against him; and that he was denied his right to confront the witnesses against him in that the aliens whom he was accused of transporting had been deported and were out of the reach of subpoenas. Based upon the records of the criminal proceedings, the district court denied relief.

This Court, as well as other Circuit Courts, have previously ruled that § 1324 is not unconstitutionally vague. Bland v. United States, 5th Cir. 1962, 299 F.2d 105; United States v. Sanchez-Mata, 9th Cir. 1970, 429 F.2d 1391; Herrera v. United States, 9th Cir. 1953, 208 F.2d 215, cert. denied 347 U.S. 927, 74 S.Ct. 529, 98 L.Ed. 1080. Neither does the statute contain language indicating that one transporting an alien is presumed to know that person is in the United States illegally. At any rate, the transcript of the proceedings at which appellant pled guilty demonstrates that appellant freely admitted that he transported the aliens involved with full knowledge that they were illegally in this country.

The transcript further shows that appellant was advised by the court of his right to have counsel appointed for him, and that he freely waived that right. Finally appellant, by pleading guilty, waived his right to confront the witnesses against him, since a voluntary guilty plea constitutes a waiver of that right. Askew v. State of Alabama, 5th Cir. 1968, 398 F.2d 825; see also Boyd v. Smith, 5th Cir. 1970, 435 F.2d 153; Busby v. Holman, 5th Cir. 1966, 356 F.2d 75. In addition, the trial court specifically advised appellant that he was waiving this right by pleading guilty.

As the district court found, the record reveals that appellant is not entitled to relief. Therefore the judgment below is affirmed.

Affirmed.


text:
    Lawrence Univester HARGRETT, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director Florida Division of Correction, Respondent-Appellee.
    No. 72-2998
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 2, 1973.
    Lawrence Hargrett, pro se.
    Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Joel D. Rosenblatt, Asst. Atty. Gen. of Fla., Miami, Fla., for respondent-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

The district court denied the habeas corpus petition of Hargrett, a Florida prisoner. We Vacate and Remand.

Hargrett was convicted upon trial by jury of first degree murder committed in the course of a felony and was sentenced to life imprisonment. The conviction was affirmed on direct appeal in Hargrett v. State, Fla.App.1971, 255 So. 2d 298. Appellant then filed a petition for the writ of habeas corpus in federal district court. The petition was dismissed for failure to exhaust state remedies as to one of the issues presented— that the in-court identification of appellant by a witness was preceded by an impermissibly suggestive photographic identification procedure.

Hargrett then filed a second habeas petition in the court below, deleting the photo-identification issue and alleging (1) that the trial court erred in instructing the jury that an inference of guilt could be drawn from evidence of flight, in that this instruction amounted to an improper comment on his guilt; (2) that the same instruction was erroneous in that the indictment did not give him notice that flight to avoid apprehension was an essential ingredient of first degree murder; and (3) that the Florida felony murder statute is unconstitutional because it permits prosecution for first degree murder even if the killing was not premeditated. Har-grett later amended his petition, albeit obliquely, to include the photo-identification issue, insisting that the issue had been argued on direct appeal. The district court denied the petition on the merits, making no findings on the issue of suggestive photo identification.

A review of the record reveals that the photo-identification issue has not been presented to any state court despite appellant’s insistence. He did argue on direct appeal that the witness’ identification was insufficient to support a conviction. This, however, goes to the sufficiency of the evidence. There was no argument raised on appeal as to the suggestiveness of the photograph identification procedures.

Rules of comity, as well as the policy against piecemeal litigation, dictate that federal courts will not consider a petition for the writ of habeas corpus until all issues raised therein have been presented to a state court. Burroughs v. Wainwright, 5 Cir. 1972, 454 F.2d 1165; Johnson v. Wainwright, 5 Cir. 1971, 453 F.2d 385; Porter v. Wainwright, 5 Cir. 1971, 439 F.2d 264. Hargrett has an adequate state remedy available to him in Rule 3.850, Fla.R. Crim.P., 33 F.S.A. by which he may seek relief in the state trial court. The judgment below is vacated and remanded with instructions to dismiss without prejudice to allow Hargrett to exhaust his state remedies as to all issues.

Vacated and remanded.


text:
    James E. COLLINS, #177733, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 72-3588
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 13, 1973.

      Jon H. Palmer (Court-Appointed), Houston, Tex., for petitioner-appellant.
    Crawford Martin, Atty. Gen., Robert Darden, Dunklin, Sullivan, Asst. Atty. Gens., Austin, Tex., for respondent-ap-pellee.
    Before BELL, GODBOLD and IN-GRAHAM, 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.

   PER CURIAM:

Appellant, a Texas state prisoner, filed a habeas corpus petition alleging (1) that his state conviction was invalid because an involuntary confession had been used against him at his trial, (2) that he had not been accorded his rights under Jackson v. Denno, (1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, and (3) that his sentence had been improperly enhanced by prior convictions which were invalid because he had been denied the assistance of counsel and had been convicted on the basis of a guilty plea that had been involuntarily made. After an evidentiary hearing the district court held that the confession used to support the present conviction had not been involuntary, and, with regard to the prior convictions, that appellant had not been denied the assistance of counsel, nor had he pleaded guilty involuntarily.

We hold that these findings are not clearly erroneous. With regard to the Jackson v. Denno claim, we observe that considerations of comity normally require the federal habeas court to give the state courts the first opportunity to make an independent determination of the voluntariness of a confession, as required by Jackson v. Denno, where such a determination was not made at trial. Here, however, after the parties stipulated that all state remedies had been exhausted (a fact not appearing of record and about which there was some doubt), the district court made this determination itself. The procedure adopted of the stipulation and federal hearing was unusual, but in these circumstances no reversal is indicated. The federal hearing vindicated appellant’s right to an independent judicial determination of the voluntariness of his confession and thus his right to a federal forum on the issue is exhausted. Moreover, the federal hearing was acquiesced in by the state, whose interests under Jackson v. Denno would normally require the federal habeas court to defer to the courts of the state.

Affirmed.


text:
    John ROSS, Plaintiff-Appellant, v. MOBIL OIL CORPORATION, the BARGE MCM NO. 2, Her Engines, etc., et al., Defendants-Appellees.
    No. 72-1890
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 21, 1973.
    Rehearing Denied April 2, 1973.

      Samuel M. Cashio, Jr., Maringouin, La., James A. George, Frank J. Polozola, William C. Kaufman, III, Baton Rouge, La., for plaintiff-appellant.
    Joseph E. Mixon, New Orleans, La., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and COLEMAN and MORGAN, 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:

Plaintiff appeals from an order of the District Court granting Defendant’s motion for summary judgment. The cause of action allegedly arose when Plaintiff, a welder assigned, berthed, and fed on a stationary production platform 35 miles off the coast of Louisiana, was injured by some falling equipment while cutting header supports to allow the equipment to be loaded from the Platform onto a nearby Barge. He based his claim on Jones Act negligence and the General Maritime Law doctrine of seaworthiness. The trial Judge determined that because, as a matter of law, the Plaintiff had failed to establish his status as a “seaman”, neither the Jones Act nor the doctrine of seaworthiness afforded a basis for recovery. We agree.

As a general proposition, the determination of whether an individual is a “seaman” within the purview of the Jones Act or the maritime law is a purely factual matter for determination by the jury or factfinder. Braniff v. Jackson Ave.-Gretna Ferry Inc., 5 Cir., 1960, 280 F.2d 523, 1961 A.M.C. 1728; Burns v. Anchor-Wate Co., 5 Cir., 1972, 469 F.2d 730 [1972]; Hardaway Contracting Co. v. O’Keeffe, 5 Cir., 1969, 414 F.2d 657, 661, 1969 A.M.C. 73, 77. In response to a bevy of cases brought by ambiguous-amphibious maritime workers claiming the protection of the Jones Act or the doctrine of seaworthiness, this Court, in Offshore Co. v. Robison, 5 Cir., 1959, 266 F.2d 769, 1959 A.M.C. 2049, outlined a two-pronged test. According to Robison there is a legally sufficient evidentiary basis for the case to go to the jury:

(1) If there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) If the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips.

In Thibodeaux v. McDermott & Co., 5 Cir,, 1960, 276 F.2d 42, 1961 A.M.C. 1469, we considered the status of a land-based welder who was temporarily assigned to a barge to weld and cut pad-eyes and metal straps and held that where the Plaintiff’s customary duties are on shore neither short tenure on a vessel nor tenuous claims about a proposed trip on board have “sufficient legal buoyancy to float a seaman’s status.” 276 F.2d at 47,1961 A.M.C. at 1474. Accordingly, we affirmed the District Court’s order directing a verdict for the Defendant. Accord, Rotolo v. Halliburton Co., 5 Cir., 1963, 317 F.2d 9, 1963 A.M.C. 1793, cert. denied, 1963, 375 U.S. 852, 84 S.Ct. 111, 11 L.Ed.2d 79; Texas Co. v. Savoie, 5 Cir., 1957, 240 F.2d 674, 1957 A.M.C. 340, cert. denied, 1957, 355 U.S. 840, 78 S.Ct. 49, 2 L.Ed.2d 51. Thibodeaux is dispositive of Plaintiff’s Jones Act claim.

Plaintiff also makes a claim under the warranty of seaworthiness concept of General Maritime Law as a vicarious seaman under the doctrine of Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, 1946 A.M.C. 698; and its progeny, Jackson v. Lykes Bros. Steamship Co., Inc., 1967, 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488, 1967 A.M.C. 584; Gutierrez v. Waterman S.S. Corp., 1963, 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297, 1963 A.M.C. 1649; Reed v. The Yaka, 1963, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448, 1963 A.M.C. 1373; Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143, 1954 A.M.C. 1, which extends the protection of the warranty of seaworthiness to those performing the traditional functions of seamen. Plaintiff tries to make out connection with seaman’s work by suggesting that his cutting and welding were essential to the “loading” of the barge —a traditional function of a seaman. This Court — in a case of land-based injury to a longshoreman resulting from defective shore-based equipment not a part of the ship’s gear — considered the question of what comprises “loading” in Law v. Victory Carriers, Inc., 5 Cir., 1970, 432 F.2d 376, 1970 A.M.C. 2215, and determined to use the terms in a “more pragmatic and less ritualistic sense.” 432 F.2d at 383, 1970 A.M.C. at 2225. The United States Supreme Court reversed. Victory Carriers Inc. v. Law, 1971, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383, 1972 A.M.C. 1. For this and other reasons bearing on Jones Act status Plaintiff failed to make out the necessary status to reap the benefit of any warranty of seaworthiness.

Acceptance of the trial Judge’s approach makes it unnecessary for us to intimate any views as to the significance, if any, of the intervening decision in Executive Jet Aviation, Inc. v. City of Cleveland, 1972, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454, 462.

Affirmed.


text:
    Joseph FISCHER, Appellant, v. Hon. William T. CAHILL, Governor of New Jersey, et al.
    No. 72-1554.
    United States Court of Appeals, Third Circuit.
    Submitted Feb. 6, 1973.
    Decided March 1, 1973.

      Joseph Fischer, pro se.
    George F. Kugler, Jr., Atty. Gen. of New Jersey, Trenton, N. J., Virginia L. Annich and Michael S. Bokar, Deputy Attys. Gen., for appellees.
    Before BIGGS and GIBBONS, Circuit Judges, and HUYETT, District Judge.
   OPINION OF THE COURT

PER CURIAM:

Appellant, a state prisoner, filed a pro se complaint claiming violations of his civil rights. The district court permitted the filing of the complaint in forma pauperis, directed that no summons issue, and dismissed before any responsive pleadings were filed, apparently on the authority of Rule 12(b)(6), Fed.R.Civ.P. The inartistieally drafted complaint asserts (1) damages arising from the use of improper medication prescribed by the New Jersey State Prison Medical Department, and (2) a violation of appellant’s civil rights by the members of the New Jersey Parole Board in that they denied his parole without a statement of reasons.

With respect to the medication contention, dismissal was proper, since by a most generous reading the complaint can only be construed as a tort claim for malpractice. The only jurisdiction asserted is under the Civil Rights Act, 42 U.S.C. § 1983, and a tort claim for malpractice is not cognizable under that jurisdiction. E. g., Nettles v. Rundle, 453 F.2d 889 (3d Cir. 1971); Isenberg v. Prasse, 433 F.2d 449 (3d Cir. 1970). Moreover, with respect to the prescription of the medication no person is named as a defendant, but only the New Jersey Prison Medical Department. That state agency may not be sued under 42 U.S.C. § 1983 since it is not a person. United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84 (3d Cir. 1969), cert. denied, 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691 (1970).

The charges against the members of the Parole Board are another matter. Affording the complaint the generous construction required by Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), it may be- construed as alleging that appellant seeks declaratory relief, injunctive relief, and possibly damages, with respect to the failure of the Parole Board to give reasons for its adverse action. No jurisdictional amount is required, Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), although an extravagant amount is here pleaded. In New Jersey a rejected applicant for parole is entitled to a statement of reasons. Monks v. New Jersey State Parole Board, 58 N.J. 238, 249, 277 A.2d 193, 199 (1971). Cf. Mosley v. Ashby, 459 F.2d 477 (3d Cir. 1972) (per curiam). A claim of denial of such a statement, minimally at least, can be construed on this record as setting forth a denial of the equal protection of the laws. On this appeal the brief for the appellees suggests that reasons may in fact have been given, but there is nothing of record to establish the facts.

We have had all too frequent occasion to reverse district court orders which have, without compliance with the procedural requirements of the Federal Rules of Civil Procedure, dismissed prisoner Civil Rights Act complaints. See, e. g., Marshall v. Brierley, 461 F.2d 929 (3d Cir. 1972); Mayberry v. Prasse, 449 F.2d 1266 (3d Cir. 1971) (per curiam); Bethea v. Reid, 445 F.2d 1163 (3d Cir. 1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 747, 30 L.Ed.2d 749 (1972). Rarely, if ever, will the total judicial effort required for the disposition of such complaints be reduced by disregarding, in such eases, the rules which afford to litigants generally the opportunity to require the filing of a motion or responsive pleading and to be heard in opposition before their complaint is dismissed. Such a course will undoubtedly reduce the total impact of unnecessary litigation in this field.

The judgment of the district court will be affirmed as to the medical contention, and reversed as to the Parole Board contention and the cause remanded for further proceedings in compliance with the Federal Rules of Civil Procedure.

      . In ¡i letter to the Clerk of this Court dated January 12, 1973, appellant stated that he desired to withdraw all of the complaints except that concerning parole.


text:
    UNITED STATES of America, Appellee, v. Robert NOCERINO, Appellant.
    No. 557, Docket 72-2328.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 31, 1973.
    Decided Feb. 21, 1973.
    Certiorari Denied June 11, 1973'.
    See 93 S.Ct. 2785.
    Caren S. Brutten, The Legal Aid Society, New York City (Robert Kasanof, The Legal Aid Society, New York City, of counsel), for appellant.
    George G. Bashian, Jr., Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y. (Robert A. Morse, U. S. Atty., E. D. N. Y., and L. Kevin Sheridan, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y., of counsel), for appellee.
    Before ANDERSON, FEINBERG and MULLIGAN, Circuit Judges.
   PER CURIAM:

This is an appeal from a judgment of the United States District Court, Eastern District of New York, convicting the appellant, Nocerino, of possession of various stimulant and depressant drugs without a prescription (21 U.S.C. § 331 (q)(3)(B), as amended (Supp. IV 1968) (repealed 1970)) and with intent to sell (21 U.S.C. § 331(q) (3) (A), as amended (Supp. IV 1968) (repealed 1970)). The judgment of conviction was rendered on September 6, 1972 after a trial before Hon. John F. Dooling, Jr., District Judge, and a jury. Appellant was sentenced to a term of four years for possession with intent to sell and given a concurrent one year sentence for possession without a prescription. There is no issue on this appeal with respect to Noeerino’s conviction of possession with out a prescription. The sole question is whether the evidence produced at trial was sufficient for the jury to find beyond a reasonable doubt that the appellant intended to sell the 17,000 capsules of barbiturates and amphetamines which were in his possession. We find that there was and accordingly affirm.

The issue is indeed narrow, because although Section 331(q)(3)(A) makes punishable the “possession for sale, delivery, or other disposal to another,” Nocerino was only charged with possession for “sale,” an oversight which resulted in this appeal. Appellant urges that cases such as United States v. Ortiz, 445 F.2d 1100 (10th Cir.), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971), and United States v. Cerrito, 413 F.2d 1270 (7th Cir. 1969), cert. denied, 396 U.S. 1004, 90 S.Ct. 554, 24 L.Ed.2d 495 (1970), which involve affirmances of convictions based on the possession of large quantities of drugs, are not in point here because the indictments in those cases were in the disjunctive, charging possession for sale, delivery or other disposal. While this is true and while no case has. been found involving the precise point before us, we believe that Judge Dooling properly denied defendant’s motion for a judgment of acquittal and that there was sufficient evidence for reasonable men to be convinced beyond reasonable doubt that the appellant possessed the drugs here for the purpose of sale. United States v. Taylor, 464 F.2d 240 (2d Cir. 1972).

The jury was meticulously charged that Nocerino had to intend to sell them personally. There was no claim then or now that the jury which made this determination was confused or misled by the failure of the indictment to embrace the statutory language of some other disposal not involving a consideration. The facts adduced before the jury indicated that Melvin Birch, a registered pharmacist and a co-defendant below, had been receiving large quantities of depressants and stimulants at his pharmacy. An investigation of his records disclosed an extreme shortage in the majority of the drugs audited. This fact prompted the surveillance of his home. On the evening of January 28, 1971, agents observed Birch carrying a 16" x 18" x 14" package out of the store to his car which he drove home. At 6 :00 P.M. on January 29, 1971, agents saw a yellow Corvette drive up to Birch’s home and pull into his driveway. A package transfer took place and when the Corvette was intercepted, the driver Nocerino was found to have a cardboard box containing seventeen plastic bottles of 17,000 amphetamines and barbiturates. A jury in the Eastern District of New York is normally not unsophisticated. It would have been unreasonable for them to have found that Nocerino intended to consume all of these pills himself or distribute them as gifts to friends. These were not bonbons but drugs, acquired not in the pharmacy but in the pharmacist’s garage.

In view of the vast amount of drugs here involved and the recognition that their sale is enormously profitable, it is reasonable in our view to conclude beyond a reasonable doubt that the person apprehended with them in his possession under the circumstances outlined, intended to sell them himself. While it is possible that he was a messenger or courier, the jury was told specifically that this was not sufficient. As we have recently held “[w]e in no way subscribe to the doctrine that ‘where the Government’s evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt’. . . ” United States v. Taylor, 464 F.2d 240, 244 (2d Cir. 1972).

Affirmed.

      . See also United States v. Knight, 395 F.2d 971, 975 (2d Cir. 1968), cert. denied, 395 U.S. 930, 89 S.Ct. 1776, 23 L.Ed.2d 249 (1969) discussing the rebuttable statutory presumption of intent to sell or distribute arising from the transportation of a quantity of obscene matter (18 U.S.C. § 1465 (1970)).


text:
    UNITED STATES of America and Richard C. Pfeiffer, Special Agent, Internal Revenue Service, Petitioners-Appellees, v. Berry L. KESSLER, Secretary, Brittany Builders, Inc., Respondent-Appellant.
    No. 72-1454.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 1, 1972.
    Decided March 2, 1973.
    Joseph F. Dillon, Raymond, Fletcher & Dillon, Detroit, Mich., for respondent-appellant.
    Charles Anderson, Atty., Tax Div., Dept, of Justice, Washington, D. C., for petitioners-appellees; Scott P. Cramp-ton, Asst. Atty. Gen., Meyer Rothwacks, John P. Burke, Attys., Tax Div., Dept, of Justice, Washington, D. C., on brief; William W. Milligan, U. S. Atty., W. Robinson Watters, Asst. U. S. Atty., Columbus, Ohio, of counsel.
    Before WEICK, PECK and KENT, Circuit Judges.
   PER CURIAM.

This is an appeal from an order of the District Court enforcing an Internal Revenue summons, Title 26 U.S.C. § 7602, requiring the respondent to produce certain books and records of an alleged Ohio corporation.

A brief review of the proceedings in the District Court is appropriate. The petition for enforcement of the summons was filed on September 27, 1971. On the same day an order was issued requiring the respondent to show cause why the summons should not be enforced. After various interim proceedings an order was entered on December 3, 1971, which provided in part:

“For these reasons, it is Ordered that respondents be allowed reasonable discovery of petitioner’s agents and witnesses prior to the adversary hearing in this cause, * * * and it is Further Ordered that said discovery be completed by December 20, 1971, * * App. pgs. 46a & 47a.

Thereafter, and on December 13, 1971, the petitioners filed a motion “For Temporary Suspension of Discovery or Protective Order.” On December 15, all counsel appeared in the Court’s chambers and had extensive argument as to which Government Agents should be deposed and the timing of the depositions. During the course of the December 15 hearing, the Court said at one point:

“Now, let me return, then, so that there will be no question. I am not determining that Mr. Dillon may not at any time expand these depositions. At the moment, I am going to permit him to take the depositions of Miss Leggett, Mr. Deal and Mr. Pfeiffer * * * ” App. pg. 142a.

Later during the same hearing the Court said:

“Well, Mr. Dillon, let me go into this for just a moment. I am satisfied to permit you to take Mr. Pfeif-fer’s deposition twice. Is there any reason why that can’t be done in just that fashion, that you take two depositions of Pfeiffer, if you so choose, before you take Leggett and Deal ?” App. pg. 154a.

The first deposition of Mr. Pfeiffer, Special Agent, Internal Revenue Service, was taken December 23, 1971, and the parties again met with the Court on January 26, 1972. In the period between the taking of Mr. Pfeiffer’s deposition and the proceedings in the Court’s chambers, on January 26, 1972, certain briefs relating to issues of law were filed with the Court. During the proceedings on January 26, the trial court had the following to say, in part:

“* * ]y[r- Dillon is correct that we agreed to permit two depositions. As I recall, Mr. Dillon had indicated that the first deposition he really didn’t care what the answers were, but he would take those answers and interrogate further in the second deposition. * * *, but I think in fairness to Mr. Dillon, if I am imposing a burden, I should give him an opportunity to meet the burden. So, I am going to allow the second deposition to be taken. As a matter of fact, I would ask that it be taken promptly.” App. pg. 159a.

After the hearing on January 26, arrangements were made to take the second deposition of Special Agent Pfeiffer on February 19, 1972. This date was accelerated to February 3, 1972, but on February 1, 1972, it was adjourned because petitioners’ counsel would be unavailable on February 3, 1972.

Without any motion or notice, and without consulting with counsel, the Court, on February 18, 1972, 338 F. Supp. 420, handed down an opinion and order granting enforcement of the summons and requiring the respondent to appear within 30 days for the purpose of making available the materials requested by the summons.

We do not reach any issue relating to alleged errors in the trial court’s opinion and order. We hold that when a trial court informs counsel for a party that discovery- will be permitted and orders the other party to submit to such discovery, the court may not, without warning or hearing, change its mind and terminate the litigation. This does not fit our concept of fairness and due process. It may very well be that the District Court’s enforcement of the summons is correct under the circumstances of this case in view of the defenses asserted. Counsel for the respondent are entitled to be heard on all proper issues and we suggest that in the future the hearings be in the courtroom.

Reversed and remanded for further proceedings.


text:
    Leuna Creekmore STEPHENS, Plaintiff-Appellee, v. CITY OF DAYTON, TENNESSEE, Defendant-Appellant.
    No. 72-1864.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 31, 1973.
    Decided March 2, 1973.
    Jeffrey L. Cleary, Sizer Chambliss, Chattanooga, Tenn., for defendant-appellant; William B. Luther, Chattanooga, Tenn., on brief; Luther, Anderson & Ruth, Chattanooga, Tenn., of counsel.
    Harry Berke, Chattanooga, Tenn., for plaintiff-appellee; Berke, Berke & Berke, Chattanooga, Tenn., of counsel.
    Before McCREE, MILLER and KENT, Circuit Judges.
   PER CURIAM.

This is an appeal from a judgment, in a personal injury action, for $42,400, reduced from a jury verdict of $52,400 by a remittitur of $10,000, to which the ap-pellee agreed. The case was originally tried in November, 1971, and a jury verdict in favor of the appellee was returned in the amount of $7,000. Thereafter, and on November 17, 1971, by order of the District Court, counsel for the appellee was granted permission to interview the jurors. Subsequently one juror made an affidavit, which was attached to the appellee’s motion for a new trial, in which the juror stated that another juror had, during the deliberations, volunteered a statement that the juror had observed the appellee on the parking lot, near the Federal Court building, and that she walked unattended in the parking lot much better than in the courtroom. The trial court later examined the juror who testified to the same effect as set forth in the affidavit. Thereafter, the trial court granted the motion for new trial.

On the second trial, in April, 1972, the jury returned a verdict in the amount of $52,400 in favor of the appellee. Appellant filed a motion for leave to interrogate the jury which motion the same trial judge denied on authority of McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915); Gault v. Poor Sisters of St. Frances Seraph of Perp. Ador., 375 F.2d 539 (6th Cir. 1967); Womble v. J. C. Penney Co., 431 F.2d 985 (6th Cir. 1970). In the opinion and order denying the appellant the right to interview jurors the Court said in part:

“This is an embarassment to the Court, because the plaintiff was allowed to interrogate members of an earlier jury herein; and, jurors should not generally be exposed to such intrusions [citations omitted],
“Although perhaps appearing on the surface to be comparatively unfair to the parties herein, this Court believes that it’s original error in judgment *' should not now be compounded.”

In the footnote the Court stated “If the Court were making the same judgment today on application of the plaintiff, on the present showing of the defendant, the request would be denied.”

Neither party to this lawsuit, in the initial request for authority to interrogate the jury, suggested that it was aware of any grounds or purpose for such an interrogation. Clearly, the desire to interrogate in each instance was what is commonly known as a fishing expedition in an effort to find material with which to impeach the verdict by the testimony of a juror.

The appellee contends that the affidavit and testimony of the juror on the first trial is sufficient ground to justify the new trial. We disagree.

The question of impeachment of a jury verdict by one of the jurors was before the Supreme Court of the United States in McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915). The Court said at page 267, 35 S.Ct. at page 784:

“For while by statute in a few jurisdictions, and by decisions in others, the affidavit of a juror may be received to prove the misconduct of himself and his fellows, the weight of authority is that a juror cannot impeach his own verdict. The rule is based upon controlling considerations of a public policy which in these cases chooses the lesser of two evils. When the affidavit of a juror, as to the misconduct of himself or the other members of the jury, is made the basis of a motion for a new trial, the court must choose between redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what had happened in the jury room.”

The same issue was before this Court only recently in Womble v. J. C. Penney Co., 431 F.2d 985 (6th Cir. 1970). Where this Court said at page 989:

“The general rule is that jurors may not impeach their verdict (McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915)), but the rule does not preclude inquiry into any extraneous influences brought to bear upon the jury in order to show what the influences were and whether they were prejudicial. Gault v. Poor Sisters of St. Frances, 375 F.2d 539 (6th Cir. 1967); Stiles v. Lawrie, 211 F.2d 188 (6th Cir. 1954). Contrary to appellant’s contention, federal and not state standards control in determining whether or not extraneous influences have so prejudiced jury consideration of the issues as to warrant reversal. Gault v. Poor Sisters of St. Frances, supra, 375 F.2d at 549; 6A J. Moore, Federal Practice ¶ 59.08 [4], at 3814 (2d ed. 1966). The District Court found that the alleged misconduct of the jury did not involve elements of extraneous influences, and went on to find that the jury used the quotient only as a point for discussion in arriving at a fair verdict, that several of the comments made by jurors during deliberation were statements of general experience background and did not amount to additional evidence supplementary to that introduced during the trial.”

We hold, as the trial court recognized, that it was an abuse of discretion for the trial judge to authorize counsel for a party to interrogate the jurors in an effort to impeach the jury verdict. We find no extraneous influence sufficient to justify the order setting aside the verdict of the jury which sat on the first trial. Under such circumstances we have no alternative except to require that the judgment from which this appeal is taken be set aside and order the ease remanded to the trial court for entry of judgment on the verdict returned in the first trial.

Reversed.


text:
    Major William L. MULLER, Jr., Petitioner-Appellee, v. Melvin LAIRD as Secretary of Defense, et al., Respondents-Appellants.
    No. 72-1185
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 31, 1973.
    William S. Sessions, U. S. Atty., Henry Valdespino, San Antonio, Tex., for respondents-appellants.
    Gerald H. Goldstein, San Antonio, Tex., for petitioner-appellee.
    Before BELL, DYER and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. Part I (5th Cir. 1970). v. Citizens Casualty Co. of N. Y., 431 F.2d 409,

   PER CURIAM:

It may well be the height of irony that this conscientious objector claim is raised by a high-ranking veteran after four years of the finest collegiate training at the Military Academy at West Point, a tour of duty in Viet Nam and extensive post-graduate studies as an officer in the regular army. Nevertheless, during his final months of graduate study at the University of Missouri and following the publication of orders assigning him to another tour of duty in Viet Nam, Major William L. Miller declared himself to be conscientiously opposed to war in any form. The district court found that the denial of conscientious objector status to Major Miller was without basis in fact and the respondents do not appeal from this determination. Therefore, we limit our comments to the district court’s determination that it had jurisdiction in this cause which we affirm.

Although Major Miller had signed out in the personnel register of his unit pursuant to orders requiring him to report to Viet Nam prior to the filing of the instant petition, the district court concluded that petitioner was still subject to the custody of the Commanding General of the Fifth United States Army at the time of filing his habeas corpus petition. The district court relied on the following factual circumstances to establish this jurisdiction: first, petitioner did not complete his outprocessing from his former unit; second, petitioner’s financial records remained under the custody of the Fourth United States Army (which was merged with the Fifth United States Army); third, petitioner was physically present and quartered at Fort Sam Houston, Texas, on the date the original Petition for Writ of Habeas Corpus was filed, and while he was so present he was subject to the rules and regulations of Fort Sam Houston; and fourth, the headquarters of the Fifth United States Army subsequently issued and published special orders to petitioner reassigning him from Viet Nam to Fort Sam Houston, Texas.

The Government contends that Miller’s custodian on the crucial date was Headquarters, Department of the Army, Washington, D. C., since he was in transit between two duty stations. We reject, as did the district court, this fictitious, limited concept of custody. The district court’s opinion clearly demonstrates that Miller had had and retained significant and meaningful contacts with the Fifth United States Army and that its Commanding Officer, General Underwood (or his successors), exercised a sufficient degree of authority, control, and responsibility as to Major Miller so as to make such commandant a proper “custodial” respondent in this habeas action. See Carney v. Laird, 462 F.2d 606 (1st Cir. 1972); Miller v. Chafee, 462 F.2d 335 (9th Cir. 1972); Feliciano v. Laird, 426 F.2d 424 (2d Cir. 1970); Cf. Strait v. Laird, 406 U.S. 341, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972). In addition, the district court relied on Strait to conclude that the Department of the Army, by enlisting the aid of Fifth United States Army and Fort Sam Houston, had sufficient contacts to give the Department of the Army “presence” in Texas with respect to jurisdiction in this case. See Hoover v. Kern, 466 F.2d 543 (5th Cir. 1972); Still v. Commanding Officer, 463 F.2d 991 (5th Cir. 1972).

We hold that the district court properly determined that it had jurisdiction to bear and determine Major Miller’s habeas petition.

The judgment of the district court is in all respects

Affirmed.

      . The district court’s findings of fact and conclusions of law are set out at 352 F.Supp. 1037.