author: PER CURIAM: CHAMBERS, Circuit Judge

text:
    Edward W. CHAUNCEY, Petitioner-Appellee, v. SECOND JUDICIAL DISTRICT COURT, WASHOE COUNTY, RENO, NEVADA, and Carl Hooker, Warden, Nevada State Prison, Respondents-Appellants.
    No. 72-2538.
    United States Court of Appeals, Ninth Circuit.
    Feb. 26, 1973.

      Chambers, Circuit Judge, concurred and filed opinion.
    Robert List, Atty. Gen., Herbert F. Ahlswede, Chief Deputy, Atty. Gen., Carson City, Nev., Robert E. Rose, Dist. Atty., Kathleen M. Wall, Chief Deputy, Dist. Atty., Reno, Nev., for respondents-appellants.
    Charles M. Murphy, of Adams, Reed, Bowen & Murphy, Reno, Nev., for petitioner-appellee.
    Before CHAMBERS, BROWNING, and DUNIWAY, Circuit Judges.
   PER CURIAM:

Chauncey is a Nevada state prisoner. Nevada has charged him with the crime of escape, and he asserts that Nevada has deprived him of his right to a speedy trial on that charge. In Chauncey v. Second Judicial District Court, 453 F.2d 389 (9th Cir. 1971), we ordered the district court to hold an evi-dentiary hearing on Chauncey s petition for habeas corpus. That has been done, and the district court has enjoined the state from giving any effect to the charge and detainer lodged against Chauncey.

The facts revealed in the hearing below showed that while serving a sentence for burglary in Arizona, Chauncey sought by various motions and letters to be brought to trial in Nevada on a pending Nevada charge of his having unlawfully escaped from prison in that state. Prison officials in Arizona misinformed Chauncey as to the county from which the Nevada charge emanated. Thus, Chauncey’s initial demands for trial were directed to the courts and prosecutors of the wrong county and were ignored. Chauncey’s subsequent communications to the Nevada State Prison Warden, the Nevada attorney general, and the Nevada Supreme Court did not come to the attention of the officials in the county where venue was laid for more than three years from the start of Chauncey’s efforts to enforce his right. Before any action was taken, however, Chauncey, completed his term of confinement in Arizona and was released to Nevada authorities, who returned him to prison to complete his sentence on an earlier conviction. In addition, prosecution was then commenced on the escape charge.

The state contends that Chauncey’s right to a speedy trial was not abridged because once the correct set of county officials learned of Chauncey’s demands they did not engage in excessive delay in bringing Chauncey to trial. This is too cramped a view of the state’s “constitutional duty to make a diligent, good-faith effort” to bring a prisoner confined in another jurisdiction to trial, Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). Although we are not confronted with a deliberate attempt to delay the trial in order to hamper the defense, the more neutral reason that the state ascribes to the delay here, being akin to negligence, must be weighed against the state. Barker v. Wingo, 407 U.S. 514, 581, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Likewise, the other factors delineated in Barker v. Wingo weigh in Chauncey’s favor. He has sedulously and tenaciously asserted his right, and the prejudice he has suffered is amply explained in Smith v. Hooey, supra.

Affirmed.

CHAMBERS, Circuit Judge

(concurring) :

While I adhere to my original dissent in Chauncey v. Second Judicial District Court, 453 F.2d 389 (1971), I recognize that the majority there established the law of the case. Therefore, I concur in the foregoing per curiam opinion on this second time around.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The UNITED STATES, Plaintiff-Appellee, v. Anthony Frank MANCINO, Defendant-Appellant.
    No. 72-1617.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 16, 1973.
    Decided March 7, 1973.
    Certiorari Denied June 18,, 1973.
    See 93 S.Ct. 3020..
    Peter J. Lindberg, Minneapolis, Minn., for appellant.
    J. Earl Cudd, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before HEANEY and ROSS, Circuit Judges, and BENSON, Chief District Judge.
   PER CURIAM.

Anthony Frank Mancino was convicted of having received three firearms in commerce, after being convicted of a felony, in violation of 18 U.S.C.App. § 1202(a). We affirm the conviction.

The facts disclosed that the three guns in question had been manufactured in Connecticut and Massachusetts and were shipped to Minnesota in 1966 and 1970. The three guns were sold to the S & N Hardware Store at Motley, Minnesota, and on or about April 30, 1971, all three guns were stolen from the S & N Hardware by Charles Thiede. The evidence shows that Thiede sold the three guns to Mancino on April 30, 1971.

Mancino raises several questions on this appeal, all of which relate to the constitutionality and interpretation of 18 U.S.C. App. § 1202(a).

As to the constitutionality of this section, this Court has heretofore held it to be constitutional in United States v. Synnes, 438 F.2d 764, 773 (8th Cir. 1971). In that case this Court also held that no nexus need be shown with interstate commerce in receipt and possession cases and noted its disagreement in that regard with United States v. Bass, 434 F.2d 1296 (2nd Cir. 1970), aff’d, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). The Second Circuit had held in Bass that in order to avoid serious constitutional problems, § 1202(a) should be interpreted to include a requirement that receipt and possession be shown in each case to have been “in commerce or affecting commerce.” On appeal the Supreme Court affirmed Buss, concluding that the provisions of § 1202(a) were ambiguous and that the phrase “in commerce or affecting commerce” was a part of all three offenses described in the section — receipt, possession and transportation. The Supreme Court however, did not declare the section unconstitutional. Later the Supreme Court vacated the judgment in Synnes for further consideration in light of Bass. Synnes v. United States, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972). But in our view, that action resulted solely from our determination that no nexus with commerce need be shown, and our determination therein that the statute is constitutional, is still viable.

Mancino also claims on this appeal that no nexus with interstate commerce was shown and that the instructions relating thereto were in error. The trial court instructed the jury that the essential elements of the crime charged were:

“First: That the defendant at the time and place charged in each count of the indictment, received a firearm;
Second: That such receipt was in commerce or affecting commerce;
Third: That at the time of such receipt, defendant had been convicted of a felony by a Court of the State of Minnesota.”

The trial court also instructed the jury that “a firearm is received in commerce or affecting commerce if it had previously traveled between two states of the United States.”

We find no error in the instructions and no inadequacy in the proof. The guns had been manufactured in other states and had been shipped into Minnesota. In United States v. Bass, supra, Mr. Justice Marshall, writing for the majority, stated as follows:

“The Government can obviously meet its burden in a variety of ways. We note only some of these. For example, a person ‘possesses ... in commerce or affecting commerce’ if at the time of the offense the gun was moving interstate or on an interstate facility, or if the possession affects commerce. Significantly broader in reach, however, is the offense of *receiv[ing] in commerce or affecting commerce,’ for we conclude that the Government meets its burden here if it demonstrates that the firearm received has previously traveled in interstate commerce.” (Emphasis supplied.) Id., 404 U.S. at 350, 92 S.Ct. at 524. .

Mancino claims this language is dicta, but in our view it is not only a correct statement of the law but also the only indication which we have been given by the Supreme Court as to its interpretation of the requirement. We note that the Sixth Circuit and the Ninth Circuit have also recently relied upon this portion of Bass. United States v. Brown, 472 F.2d 1181 (6th Cir., 1973); United States v. Giannoni, 472 F.2d 136 (9th Cir., 1973).

For these reasons, the judgment of conviction is affirmed.

      . § 1202. Receipt, possession, or transportation of firearms—
      Persons liable; penalties for violations (a) Any person who—
      (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, . . . and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.


author: HAMLIN, Circuit Judge:

text:
    INTERNATIONAL DAIRY ENGINEERING CO. OF ASIA, INC. and Foremost Dairies Vietnam, S.A.R.L., Plaintiffs-Appellants, v. AMERICAN HOME ASSURANCE COMPANY, Defendant-Appellee.
    No. 26742.
    United States Court of Appeals, Ninth Circuit.
    Jan. 3, 1973.
    Harlon P. Rothert (argued), of Cush-ing, Cullinan, Hancock & Rothert, Wayne D. Hudson, Thomas F. Wolfe, J. Robert Notz, Jr., Legal Dept., Foremost-McKesson, Inc., San Francisco, Cal., for plaintiffs-appellants.
    W. Martin Tellegen (argued), Lyman Henry, of Hall, Henry, Oliver & Mc-Reavy, San Francisco, Cal., for defendant-appellee.
    Before HAMLIN, BROWNING and WRIGHT, Circuit Judges.
   HAMLIN, Circuit Judge:

International Dairy Engineering Co. and Foremost Dairies (hereinafter Foremost) appeal from a determination by the United States District Court for the Northern District of California, sitting without jury, that the destruction by fire of certain of their property caused by a parachute flare dropped from an unidentified military aircraft came within the war risk exclusion clause of an insurance policy issued on said property by appellee American Home Assurance Co. (hereinafter American), so as to relieve the latter of liability thereunder.

Foremost urges reversal upon the grounds that the District Judge made inaccurate findings of fact and misinterpreted the applicable legal principles. We affirm.

Foremost maintained and operated a milk processing plant in the Thu Due District, South Vietnam, which lies directly east of Saigon. The plant was situated approximately five miles east of Ton Son Nhut Air Base, a combined military-civilian airfield immediately adjacent to Saigon.

On June 1, 1965, American issued its Marine Open Policy No. 178 to Foremost. In addition to providing standard marine coverage for shipments to Vietnam, the policy was extended to afford land coverage to Foremost’s property while at the warehouses or processing plants.

On May 26, 1967, a fire caused by an aerial parachute flare dropped from an unidentified military aircraft destroyed a large stock of Foremost’s box material, valued at approximately $88,000, which had been stored directly adjacent to the processing plant.

The insurance policy was in full force and effect at the time, but American denied liability at trial solely on the basis that the loss was excluded by the policy’s war risk exclusion clause, Paragraph 6A, providing in pertinent part:

“Notwithstanding anything contained to the contrary, this insurance is . . . warranted free from the consequences of hostilities or warlike operations (whether there be a declaration of war or not), but this warranty shall not exclude . . . fire . . . unless caused directly ... by a hostile act by or against a belligerent power.
“Further warranted free from the consequences of civil war, revolution, rebellion-, insurrection, or civil strife arising therefrom, or piracy.”

The District Judge agreed with American, finding that (a) the dropping of the parachute flare which caused the fire destroying Foremost’s property was a hostile act within the meaning of the aforementioned exclusion clause, and (b) the loss was a consequence of the belligerent activities, also within the provisions of the exclusion clause.

Foremost has argued strenuously on appeal that (1) the utilization of parachute flares by allied forces in Vietnam for various purposes precludes the labeling of the use of the parachute flare in question as a “hostile act”; (2) American failed to sustain its burden below of proving that the fire was a product of a civil war, rebellion, revolution, or insurrection; and (3) even if the dropping of the subject parachute flare is deemed a “hostile act,” the fire loss should not be subject to the war risk exclusion clause, because it was the negligent dropping thereof, as opposed to the hostile character of its use which resulted in the fire.

The District Judge, in a well considered opinion dated June 23, 1970, concluded that “the flare was obviously dropped in connection with military operations against . . .Viet Cong and . . . the loss was a consequence of civil war, revolution, rebellion, insurrection and civil strife arising therefrom, wi.thin the meaning of the policy.” An examination of the record shows these findings to be based on substantial evidence; they are certainly not “clearly erroneous.”

The Court further found that “the dropping of the flare was itself, a hostile act by one belligerent against another and was clearly the dominant, effective, proximate, direct cause of the loss regardless of whether that hostile act was negligently performed.” The District Judge correctly summarized the applicable law in rejecting Foremost’s contention that a hostile act loses its hostile character when negligently performed.

Judgment affirmed.

      . Reference to this opinion in 352 F.Supp. 827 (N.D.Cal.1970) is made for further details and findings.

      . See, The Amy Warwick, 67 U.S. 635, 17 L.Ed. 459 (2 Black 635) (1862); Home Ins. Co. v. Davila, 212 F.2d 731, 736 (1st Cir. 1954).

      . United States v. Welp, 469 F.2d 688 (9th Cir. 1972). Foremost’s assertion that this standard is modified in cases, such as this one, where some of the evidence consists of depositions, is not the law in this circuit. Snider v. England, 374 F.2d 717, 720 (9th Cir. 1967); Lundgren v. Freeman, 307 F.2d 104, 113-115 (9th Cir. 1962).


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Glory Walter USHAKOW, Defendant-Appellant.
    No. 72-2654.
    United States Court of Appeals, Ninth Circuit.
    Feb. 13, 1973.
    Rehearing Denied April 30,, 1973.

      Benjamin Lazarow (argued), Tucson, Ariz., for defendant-appellant.
    David S. Hoffman, Asst. U. S. Atty. (argued), Daniel G. Knauss, Asst. U. S. Atty., William C. Smitherman, U. S. Atty., Tucson, Ariz., for plaintiff-appel-lee.
    Before CHAMBERS and WALLACE, Circuit Judges, and LUCAS, District Judge.

       Honorable Malcolm M. Lucas, United States District Judge, Los Angeles, California, sitting by designation.

   PER CURIAM:

Ushakow appeals his conviction subsequent to a jury trial on a one-count indictment charging possession of marijuana with intent to distribute and aiding and abetting, all in violation of 21 U.S.C. § 841(a)(1). We affirm.

Ushakow challenges the admissibility of certain testimony. First, he objects to a conversation related by Carlon between Chicas and himself pertaining to who sold marijuana in Nogales. Chicas spoke in Spanish and there was no proof that Ushakow understood Spanish. However, the record reflects that Carlon was translating and was merely a language conduit between Ushakow and Chi-cas. Therefore, his testimony is within the same exception to the hearsay rule as when a defendant and another are speaking the same language.

Subsequent to this conversation, Usha-kow and Carlon drove to Nogales and discussed marijuana in English with Trujillo; this discussion was clearly admissible.

Ushakow also objects to Carlon’s testimony concerning a later conversation when he was not present. Carlon testified that, about one month later, he contacted Trujillo about marijuana Ushakow was to receive in Tucson. Plans concerning delivery were discussed. Although a conspiracy was not alleged, the discussion was properly allowed in evidence on the basis of the joint venture exception to the hearsay rule. See United States v. Williams, 435 F.2d 642 (9th Cir. 1970), cert. denied, 401 U.S. 995, 91 S.Ct. 1241, 28 L.Ed.2d 533 (1971); United States v. Griffin, 434 F.2d 978 (9th Cir. 1970), cert. denied, 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971).

As with its twin brother conspiracy, the trier of fact first must determine the existence of the joint venture as a prerequisite foundation to the admission of any statements against the accused. Here the question was presented to the jury, but the trial court neglected to instruct that the joint venture must be proven beyond a reasonable doubt. See Griffin, supra, at 984. However, no objection was raised to the joint venture instructions and reversal can occur only when there is plain error. Fed.R.Crim. P. 52. The court gave a proper presumption of innocence — reasonable doubt instruction and stated that it applied to every element of the case. Under the circumstances, we cannot say there is plain error.

Ushakow next complains that a customs agent was allowed to repeat a report he heard over his two-way radio that Ushakow had given a signal to Car-Ion. Any error was harmless as Carlon testified to the same fact.

Finally, Ushakow challenges the receipt into evidence of fifteen boxes of plastic baggies found in his vehicle at the time of his arrest. He contends that the baggies could be used for a lawful purpose. He is correct. But when the defendant was charged with possession with intent to distribute marijuana, the jury could, and apparently did, draw an equally plausible contrary inference. There was no error.


text:
    UNITED STATES of America, Appellant, v. Matthew F. WHITAKER et al., Appellees. UNITED STATES of America, Appellant, v. Matthew F. WHITAKER et al., Appellees.
    Nos. 72-1682, 72-1683.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 5, 1972.
    Decided Feb. 27, 1973.
    Certiorari Denied June 18, 1973.
    See 93 S.Ct. 3003, 3014.
    Carl J. Melone, U. S. Atty., Philadelphia, Pa., Sidney M. Glazer and John J. Robinson, Attys., Department of Justice, Washington, D. C., Raymond E. Ma-kowski, Sp. Atty., Department of Justice, Philadelphia, Pa., for appellant.
    Gilbert B. Abramson, Philadelphia, Pa., for appellee William Wilson in No. 72-1683.
    Robert G. Carr, Baltimore, Md., for appellees Elaine Perrera and Michael Charles Benicky in No. 72-1682.
    Herman Schwartz, Buffalo, N. Y., for appellee William Wilson in No. 72-1683 and appellees Elaine Perrera and Michael Charles Benicky in No. 72-1682.
    Norman C. Henss, Philadelphia, Pa., for appellees Matthew F. Whitaker and James Whitaker in Nos. 72-1682 and 72-1683 and James J. Avella and Peter Smith in No. 72-1683.
    Edward G. Tremel, Biloxi, Miss., for appellee Peter J. Martino in No. 72-1682.
    Paul D. Sulman, Philadelphia, Pa., for appellees Aldo Magnelli and Almond Magnelli in No. 72-1683.
    Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

The Government appeals pursuant to 18 U.S.C. § 2518(10) (b) from an order granting the defendants’ motions to suppress evidence found by the district court to be the fruits of an electronic surveillance made pursuant to a warrant issued on the authority of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 18 U.S.C. §§ 2510-2520. The district court, 343 F. Supp. 358, granted the suppression on the ground that Title III is unconstitutional on its face, in that it fails to meet the requirements for a lawful electronic surveillance imposed by the fourth amendment. Most of the same constitutional arguments with respect to Title III were presented to this Court in United States v. Cafero, 473 F.2d 489 (3d Cir. 1973), and were rejected. That, case controls, except for one issue considered by the district court in this ease but not in Cafero. As a separate ground for decision the district court in this case held that Title III was constitutionally deficient in failing to require prompt notice, after surveillance, not only to the persons named in the order, whose telephones were to be tapped, but also to all those whose conversations were intercepted as a result. In so holding, the district court relied in part on United States v. Gervato, 340 F.Supp. 454 (E.D.Pa.1972), which was subsequently reversed by this Court. United States v. Gervato, 474 F.2d 40 (3d Cir., 1973). As with warrants to search for tangibles, Fed.R.Crim.P. 41, the warrant and notice requirements of Title III are directed to the protection of the primary target of the search. It has never been suggested that because letters in the possession of that primary target might contain communications from other parties those other parties are constitutionally entitled to notice and an inventory. Nor are such other parties aggrieved persons within the meaning of Title III. Alderman v. United States, 394 U.S. 165, 175-76 n. 9, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). Indeed, while it might be possible to determine from signatures and return addresses on letters who might be entitled to such notice, from the typical telephone or face-to-face conversation electronically intercepted such a determination would be a literal impossibility. Thus far the Court, despite the opportunity to do so, has declined to hold Title III to be unconstitutional. See Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972). If it were inclined to do so, one would hope that its decision would be based on a more defensible ground than the absence of a statutory notice requirement impossible of fulfillment had it been enacted.

It is, of course, desirable that the judge who authorizes the interception direct the filing, as promptly as reasonably possible, of the inventory contemplated by 18 U.S.C. § 2518(8)(d). That section, moreover, gives the judge discretion to cause service of the inventory upon other parties to the communication in cases where the communication has been such that the identity of such other parties is in fact known. But as we pointed out in Cafero, supra, Congress has directed that in the exercise of that discretion the district court carefully weigh the competing claims to privacy arising of necessity from the interception of spoken communication.

The Order of the district court suppressing evidence obtained as a result of court authorized electronic interception will be reversed.

      . But cf. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The right of privacy, whatever its source, has not yet been developed to the point of encompassing this case.

      . There was in this case a delay, which we deem to be unnecessary and within the control of the district court, in the preparation of a transcript of the intercepted conversations. The district courts should be alert to prevent delays due to this mechanical problem.


text:
    James William DAULTON, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.
    No. 72-1891.
    United States Court of Appeals, Sixth Circuit.
    March 1, 1973.
    Kelley Asbury (Court Apptd.), Cat-lettsburg, Ky., for defendant-appellant.
    Eugene E. Siler, Jr., U. S. Atty., Eldon L. Webb, Asst. U. S. Atty., Lexington, Ky., for plaintiff-appellee.
    Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.
   PER CURIAM.

Appellant was indicted, convicted and sentenced for violation of 18 U.S.C. § 1201, the federal kidnapping statute. He contends that the use of the phrase “or otherwise” in sub-section (a) renders the statute unconstitutionally vague. Appellant argues that one person might feel compelled to transport another person across a state line for the other person’s own safety, even though- against his will. The quoted language would make the person so acting subject to imprisonment, he maintains, even though his sole purpose was to protect the person he had transported.

The amendment to the Federal Kidnaping Act which added the phrase “or otherwise” was construed in Gooch v. United States, 297 U.S. 124, 56 S.Ct. 395, 80 L.Ed. 522 (1936) as being for the purpose of preventing the transportation of unlawfully restrained persons in interstate commerce “in order that the captor might secure some benefit to himself.” 297 U.S. at 128, 56 S.Ct. at 397. See also, United States v. McGrady, 191 F.2d 829 (7th Cir. 1951), cert. denied 342 U.S. 911, 72 S.Ct. 305, 96 L.Ed. 681 (1952). The obvious purpose of Sec. 1201 is too plain to warrant the assertion that any person of ordinary intelligence would fail to understand what conduct it forbids. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954).

The evidence in this case was that the defendant robbed his victim of $100.00 at gunpoint and then ordered him to drive from Ohio to Kentucky, still at gunpoint. The facts of this case are quite different from the hypothetical situation posed in defendant-appellant’s brief. Since the statute is constitutional as applied to the facts of this case, defendant-appellant has no standing to attack it on the ground that, as applied to other persons or in other situations, it might be unconstitutional. United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960).

The judgment of the District Court is affirmed.

      . 18 U.S.C. § 1201(a) provides, in part: Whoever knowingly transports in interstate or foreign commerce, any person who has been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall be punished .


text:
    HEIRS of Leon DENENA v. COMMUNICATION, SPLICING AND ENGINEERING CO., INC., Appellant, and The Government Insurance Fund, Appellee.
    No. 72-1971.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 31, 1973.
    Decided March 1, 1973.

      Alexander A. Farrelly, Birch, De Jongh & Farrelly, St. Thomas, V. I., for appellant.
    Henry L. Feuerzieg, Asst. Atty. Gen., St. Thomas, V. I., Ronald H. Tonkin, Atty. Gen., and Warren M. Pulner, Asst. Atty. Gen., for appellee.
    Before VAN DUSEN, MAX ROSENN and HUNTER, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

Communication, Splicing and Engineering Company, Inc., appeals from a district court judgment affirming a decision of the Commissioner of 'Labor of the Virgin Islands requiring it to reimburse the Government Insurance Fund for a workmen’s compensation award and, in addition, to pay a thirty percent penalty, pursuant to the provisions of 24 V.I.C. § 261(a).

The important facts in this case are not in dispute. Appellant, as a Virgin Islands employer, is subject to the workmen’s compensation laws found in 24 V. I.C. §§ 251-285. Section 272(b) sets forth the requirements for coverage of an employee, and section 273(c) provides for payment of the annual premium in two separate installments on or before March 31 and June 30 of the year in which it is due. Thus, an employer may delay full payment for several months after filing and still remain insured.

On February 6, 1969, appellant filed a report on wages paid for the previous year and estimated wages for 1969. No part of the 1969 premium was paid during 1969, however, despite the installment dates mentioned above. On February 6, 1970, an employee named Leon Denena was electrocuted in the course of his work. After awarding $10,000.00 to Denena’s heirs, the Commissioner of Labor, by an authorized deputy, assessed the award and a thirty percent penalty against appellant upon finding that the company was uninsured at the time of the accident. This action occurred on July 1, 1970. The delinquent premium had finally been paid on February 27, 1970.

Appellant’s principal argument on this appeal is that the district court erred in affirming the Commissioner’s decision because the doctrine of estoppel should have been applied against the government under the facts of this case. The district court agreed that prior to 1969 the custom had been for the Commissioner of Finance to assess workmen’s compensation premiums after receiving a company’s wage statement. This procedure was apparently changed in 1969, but the 1970 forms which were completed by appellant still recited the old procedure. Appellant maintains that its failure to pay was excusable since it expected to receive a bill, and it contends that the government should therefore be estopped from finding appellant uninsured and from ordering reimbursement of the award paid to Denena’s heirs and imposing the thirty percent penalty. The district court rejected this argument on the ground that appellant was negligent in failing to request a bill some time before the next year’s premium became due.

After carefully considering the briefs, oral argument and the district court opinion, we conclude that no error was committed. The doctrine of estoppel is not often permitted against a government, and it cannot be successfully asserted here where the 1969 premium was not paid until after the accident in question at which time this premium was many months overdue.

Appellant’s second contention is a request that if this court affirms the district court, we should remand the case with instructions to order reimbursement to appellant of the amount of his 1969 premium. Appellant’s theory is that the government should not be reimbursed for the award and also be allowed to keep the premium. The government concurred in this request at oral argument, and we agree that it is both fair and correct.

Accordingly, we affirm the judgment of the district court as modified, and we remand this case to the district court so that it can determine through appropriate proceedings the exact sum of money which should be credited to appellant.

      . See, e. g., In re Hooper’s Estate, 359 F.2d 569, 577-578 (3d Cir. 1966).


author: ROSENN, Circuit Judge.

text:
    Nora B. AMRITT v. PARAGON HOMES, INC., Appellant, and Caleb E. Romero.
    No. 72-1592.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) Feb. 2, 1973.
    Decided March 6, 1973.
    Howard K. Gibbs, Corneiro, Gibbs & Selke, St. Thomas, V. I., for appellant.
    Irwin J. Silverlight, Nichols & Silver-light, Christiansted, St. Croix, V. I., for appellee.
    Before VAN DUSEN, ROSENN and HUNTER, Circuit Judges.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

Paragon Homes, Inc., appeals from the judgment of the District Court for the District of the Virgin Islands in the sum of $18,770 in favor of Nora B. Am-ritt. The judgment was awarded because of the faulty construction of a home built for her with materials supplied by, in part financed by, and erected by a contractor with apparent authority to act as agent for, appellant Paragon.

The judgment amount represented an award of $1,000 attorneys fees, $900 for materials which Paragon had promised but never shipped, and $16,870, the approximate cost of the home. Paragon’s appeal challenges its liability for the $16,870. The district court, sitting without a jury, found that the house was unsuited for human habitation, and, because the cost of necessary repairs exceeded the value of the house, awarded Amritt the cost of the house.

The district court found that the unfit condition of the home was due to the failure of the contractor, Caleb E. Romero, to compact the soil under the house before pouring concrete for the foundation. Romero was found jointly and severally liable with Paragon for his negligence. Paragon’s liability was based on a finding that Romero had apparent authority to act as Paragon’s agent.

Paragon contends the district court judgment should be reversed because there was insufficient evidence to support its findings that (1) Paragon’s local representative Ray Sewer was its agent; (2) the contractor Romero was Paragon’s agent; and (3) Amritt’s home was unfit for habitation. We find sufficient evidence in the record for all three findings and affirm the judgment.

The record discloses that Amritt arranged through Ray Sewer, a distributor for Paragon, to purchase materials, plans and drawings for a pre-fabricated home. Sewer represented himself to Amritt as Paragon’s agent and informed her that Paragon would not be responsible for the construction of the home unless she used the local contractor Romero. The construction agreement between Amritt and Romero was made on a form supplied by Paragon and filled in by Sewer. Amritt borrowed money from, and gave a mortgage to, Paragon for the construction costs. The mortgage specified that the home was to be built according to Paragon’s plans. All materials were shipped by Paragon to Amritt through Sewer. Payments to Romero were made by Amritt by depositing funds in escrow with Paragon. Paragon demanded a completion certificate signed by Amritt before disbursing any funds. Sewer also inspected the construction work for Paragon.

After hearing the foregoing facts, the district court determined that both Sewer and Romero were Paragon’s agents. Although Paragon argued that Sewer was an independent distributor of its products and that Romero was an independent contractor, the court found both had all the outward trappings of apparent authority to be Paragon’s agents.' Amritt was, therefore, reasonably led to believe they were Paragon agents.

The Virgin Islands have adopted the Restatement, Agency 2d (1958), in 1 V. I.C. § 4. The Restatement 2d § 27 states:

apparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.

Liability of a principal for the negligent acts of agents whom he has endowed with apparent authority to act for him is provided by Restatement 2d §§ 265, 267. Paragon’s entire conduct — supplying all materials and forms through Sewer, requiring that the house be inspected by Sewer and built according to its plans, disbursing all construction payments — could reasonably have led Amritt to believe that by its conduct Paragon had authorized both Sewer and Romero to act as its agents. Any inter se arrangement between Paragon and Sewer or between Paragon and Romero establishing a relationship other than that of principal and agent is unimportant in determining the existence of apparent authority. The crucial question is what representations were made to the third party, Amritt. The agreement between Amritt and Paragon for purchase of materials stated it was not an agreement for construction, but such printed representations by Paragon were in marked contrast with its overall conduct. It was for the trial judge to determine what would have been reasonable for Amritt to believe under the circumstances. We find no error in his conclusion that Paragon had endowed both Sewer and Romero with apparent authority to act in its behalf.

There was substantial evidence in the record that the home constructed for Amritt was unfit for habitation. We do not find the district court clearly erroneous in so finding. Fed.Rule of Civ. Proc. 52(a).

The judgment of the district court will be affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kerry Edward KNOX, Defendant-Appellant.
    No. 72-2740.
    United States Court of Appeals, Ninth Circuit.
    March 5, 1973.
    Sol E. Scarantino, Los Angeles, Cal., for defendant-appellant.
    William D. Keller, U. S. Atty., William J. Rathje and Michael Solner, Asst. U. S. Attys., Los Angeles, Cal., for plaintiff-appellee.
    Before ELY and GOODWIN, Circuit Judges, and SCHWARTZ, District Judge.

       The Honorable Edward J. Schwartz, United States District Judge, Southern District of California, sitting by designation.

   PER CURIAM:

Kerry Edward Knox was convicted after a court trial for refusal to complete induction processing in violation of the Selective Service Act of 1967, 50 U.S.C. App. § 462.

Knox testified at the trial and the government submitted its case on his Selective Service file.

At the trial, Knox testified that he was afraid he would be arrested if he filled out USAREC Form 191-R, “Statement of Law Violations,” as ordered (R. T. pp. 10-12). His refusal to complete Form 191-R resulted in his indictment.

Knox urges three grounds for appeal:

1. the Selective Service file was improperly admitted into evidence;

2. there was no evidence that the defendant was properly warned of the consequences of his actions as required by AR 601-270 and due process; and

3. the defendant’s refusal to cooperate was within the Fifth Amendment privilege against self-incrimination.

It is established in this Circuit that an authenticated copy of a registrant’s Selective Service file is properly admissible into evidence. United States v. Lloyd, 431 F.2d 160 (9th Cir., 1970) cert. denied 403 U.S. 911, 91 S.Ct. 2210, 29 L.Ed.2d 688 (1971).

The defendant’s testimony to the effect that he was not informed of the consequences of his failure to complete Form 191-R was not believed by the trial court. (R.T. pp. 13-14, 35.) Furthermore, at pages 28 and 29 of the Selective Service file, there is evidence, in the form of statements by personnel at the Armed Forces Examining and Entrance Station, that Knox was warned of the consequences of his failure to complete induction processing as required by AR 601-270.

The trial court found that Knox’s fear of self-incrimination was “inherently incredible” (R.T. 35). Form 191-R does not request information on offenses known only to the registrant or require details not already of public record. It requires only that the registrant list the date, place and disposition of offenses for which the registrant has been “arrested, cited, charged or held.” The credibility of the defendant’s claimed fear of self-incrimination is undercut by his testimony that he went to the Armed Forces Examining Station with the intent to refuse to complete any forms, and that this intent was formed with the advice of counsel (R.T. 14, 15).

It is clear from an examination of the transcript and Selective Service file that there is substantial evidence to support the trial court’s finding of guilt.

The judgment is affirmed.


text:
    Charles LOVELACE, Petitioner-Appellee, v. E. B. HASKINS, Superintendent, Respondent-Appellant.
    No. 72-1606.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 6, 1973.
    Decided March 21, 1973.
    Leo J. Conway, Columbus, Ohio, William J. Brown, Atty. Gen. of Ohio, Thurman E. Anderson, Asst. Atty. Gen., Columbus, Ohio, on brief, for respondent-appellant.
    Hugh E. Kirkwood, Jr., Columbus, Ohio, for petitioner-appellee.

      Before WEICK, CELEBREZZE and PECK, Circuit Judges.
   PER CURIAM.

The appellee was tried to a jury in Lorain County, Ohio, and was convicted of burglary and unlawful possession of burglary tools; he received a sentence of from 1 to 15 years. On September 17, 1968, the trial court overruled his motion for a new trial. The following day, his appointed counsel wrote a letter in which he informed the appellee that he had an absolute right to an appeal within 30 days, but that he would not be able to represent the appellee for any such appeal. The letter informed the appellee how to obtain appointed counsel for a direct appeal. Through no fault of his own, the appellee did not receive this letter until after the expiration of the 30 days, and his subsequent attempts to obtain judicial review of his case were fruitless; the appellant concedes that the appellee has exhausted his state remedies.

The appellee filed this petition for a writ of habeas corpus in which he alleged that he was denied his right to a direct appeal because he had not been informed by counsel or by the court of his right to an appeal and of his right to court appointed counsel on appeal. After an evidentiary hearing, the District Court found that the appellee was denied the equal protection of the laws when he was not timely advised of his rights. Accordingly, the Court ordered the writ to issue ninety days after the filing of the Order, and ordered that the appellee be released from custody unless the state initiate action for a new trial or permit a direct appeal from his conviction within that ninety days. The respondent has perfected this appeal from that judgment.

The appellant’s single contention is that the District Court failed to inquire into whether the appellee could present any non-frivolous legal or factual contentions to the state appellate court should the writ be granted, as required by this Court’s opinion in Henderson v. Cardwell, 426 F.2d 150 (6th Cir. 1970). It must be conceded that the recent cases from this Court are inconsistent on the issue of whether meritorious issues need be presented to the District Court in the circumstances of this case, but we agree with the District Court and what appears to be the better reasoned authority that an indigent, no more than an accused with retained counsel, should not be required to show that he has meritorious claims which he might present to the appellate court on a direct appeal.

In Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1962), the Supreme Court struck down a California Rule of Criminal Procedure that provided that state appellate courts make an independent investigation of the record of an indigent to determine whether it would be of advantage to the defendant or helpful to the appellate court to have counsel appointed. In holding that this rule denied the equal protection of the laws to indi gents, the Court noted:

“At this stage in the proceedings only the barren record speaks for the indigent, and, unless the printed pages show that an injustice has been committed, he is forced to go without a champion on appeal. Any real chance he may have had of showing that his appeal has hidden merit is deprived him when the court decides on an ex parte examination of the record that the assistance of counsel is not required.” 372 U.S. at 356, 83 S.Ct. at 816.

The same consideration is equally applicable were a District Court to require an indigent petitioner, often without the aid of counsel, to present issues which the District Court would deem meritorious. The petitioner with retained counsel is not required “to run this gantlet of a preliminary showing of merit” (372 U.S. at 357, 83 S.Ct. at 816) in order to justify the issuance of a writ which would entitle him to the direct appeal which it is conceded was unjustly denied. Similarly, the indigent need only show that he was not informed of his right to a direct appeal or of his right to appointed counsel on such appeal.

This holding is in accordance with recent decisions of this court: Woodall v. Neil, 444 F.2d 92 (6th Cir. 1971); Goodwin v. Cardwell, 432 F.2d 521 (6th Cir. 1970); see also United States ex rel. Smith v. McMann, 417 F.2d 648 (2d Cir. 1969, en banc), cert. denied, 397 U.S. 925, 90 S.Ct. 929, 25 L.Ed.2d 105 (1970); United States ex rel. Singleton v. Woods, 440 F.2d 835 (7th Cir. 1971).

The judgment of the District Court is affirmed.


text:
    PEPPER & TANNER, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-1591.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 1, 1973.
    Decided March 1, 1973.
    James E. Irwin, Memphis, Tenn., for petitioner.
    Michael F. Messite, N. L. R. B., for respondent; Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert A. Giannasi, Daniel M. Katz, Attys., N. L. R. B., Washington, D. C., John J. A. Reynolds, Jr., Director Region 26, N. L. R. B., Memphis, Tenn., on brief.
    Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.
   PER CURIAM.

This case is before the Court on the petition of Pepper & Tanner, Inc. (the Company) to review an order of the National Labor Relations Board and the cross-application of the Board for enforcement of its order. The decision and order of the Board are reported at 197 N. L. R. B. No. 23, to which reference is made for a recitation of pertinent facts.

This court holds that substantial evidence on the record as a whole supports the findings of the Board that the Company violated §§ 8(a)(1), 8(a)(3) and 8(a)(5) of the Act in the particulars set forth in the decision of the Board. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

The Board ordered that the Company upon request bargain collectively with Radio and Television Engineers, Local Union 1275, International Brotherhood of Electrical Workers, AFL-CIO. The Company asserts that Local Union 1275 is no longer in existence, but has merged with another local union which does not represent the majority of the employees in the appropriate bargaining unit and has never been certified by the Board as bargaining representative. The answer of the Company to the Board’s cross-application for enforcement asserts that, without the knowledge of the Company, Local 1275 had been merged into a “purely electricians” Local 474 prior to the hearing on the unfair labor practice charges and that the General Counsel failed to disclose this merger to the Trial Examiner.

This court is unwilling to enforce a bargaining order requiring the Company to bargain with a union which the record indicates is no longer in existence. Neither are we willing to require the Company to bargain with a successor or merged Union when there has been no adjudication by the Board, supported by substantial evidence, that the successor or merged union is the authorized bargaining representative of the employees in the appropriate unit. See Union Carbide & Carbon Corp. v. N. L. R. B., 244 F.2d 672 (6th Cir. 1957); Dickey v. N. L. R. B., 217 F.2d 652 (6th Cir. 1954).

The Company has filed a timely motion for leave to adduce additional evidence before the Board pursuant to § 10(c) of the Act. Attached to the motion is a copy of a petition filed October 12, 1971, on behalf of Local 474 for an AC amendment of the certification previously issued with respect to Local 1275. This later proceeding was designated as Case No. 26-AC-21. Another exhibit to the motion of the Company is a copy of the order of the Regional Director, dated November 9, 1971, withdrawing the notice of hearing and closing ease No. 26-AC-21. Another exhibit is a copy of the following letter, purported to have been signed by five employees:

January 28, 1972
Mr. Albert T. Byars, Senior
Business Manager
Electrical Workers Union, Local #474
Dear Mr. Byars:
On January 25, 1972, we received notice to vote on a merger on Local 1275 into Local 474.
This is to notify you in writing that the undersigned are opposed to such a merger. We want this letter to be filed in the minutes, since we do not believe that members of local 474 should be allowed to vote on this par- . ticular matter that only effects Pepper & Tanner employees.
This involves our job conditions and only people at Pepper & Tanner, Inc., should vote.
Sincerely,
/s/ KING BRUMLEY, JR.
/s/ WILLIE LEWIS MOORE
/s/ MARK A. GOODMAN
/s/ JOSEPH B. DIXON
/s/ BILLY L. TANNER

Enforcement of the bargaining order of the Board is denied. Enforcement is granted as to all parts of the Board’s order except those parts requiring the Company to bargain with Local 1275. We deny enforcement of subparagraphs (f) and (g) of paragraph 1 and subpar-agraphs (a) and (b) of paragraph 2.

The motion of the Company for leave to adduce additional evidence is granted to the extent set forth below. The case is remanded to the Board with directions that evidence be heard and a determination made on the following questions :

(1) Is Radio and Television Engineers, Local Union 1275, International Brotherhood of Electrical Workers, AFL-CIO still.in existence?

(2) If not, is there a successor or merged Union which is the duly certified and authorized collective bargaining representative of the majority of the employees of the appropriate unit? If necessary, the Board is directed to conduct a Board-supervised election to determine this issue.

No costs are taxed. Each party will bear its own costs.

      . The decision of the Trial Examiner states that there were six employees in the unit.


author: ELY, Circuit Judge:

text:
    In the Matter of FINANCIAL COMPUTER SYSTEMS, INC., a California corporation, Debtor. EQUITABLE LEASING CO., Respondent-Appellant, v. Richard CLEMENTS, Trustee-Appellee.
    No. 25628.
    United States Court of Appeals, Ninth Circuit.
    Feb. 5, 1973.
    Rehearing Denied March 15, 1973.
    James B. Bertero (argued), Bruce E. Clark, of Musick, Peeler & Garrett, Stephen R. Wolfson, of Tiernan & Moneymaker, Los Angeles, Cal., for respondent-appellant.
    Donald Rothman (argued), of Sulmeyer, Kupetz & Alberts, A. J. Bumb, Los Angeles, Cal., for trustee-appellee.
    Before ELY, HUFSTEDLER, and WRIGHT, Circuit Judges.
   ELY, Circuit Judge:

Equitable Leasing Company sought reclamation, in bankruptcy proceedings, of two air conditioning units in the possession of the bankrupt’s trustee under an alleged lease agreement. The trustee refused to turn over the two units, claiming contrary to the express provisions of the written contract, that the alleged lease was a security agreement, and, as such, void because of the failure of Equitable to file a financing statement with the Secretary of State. Cal. Comm.Code § 9302.

At the referee’s hearing the trustee was allowed, over strenuous objection by Equitable, to introduce oral evidence that clearly contradicted the written terms of the otherwise complete and unambiguous lease agreement. The contested evidence suggested that an oral option had been granted by Equitable to Financial (the bankrupt) enabling the now bankrupt lessee to purchase the air conditioning units upon termination of the lease for $1,094.00.

Equitable objects that this oral evidence was inadmissible under the provisions of the California Commercial Code § 2201 and the parol evidence rule. Equitable also contends, secondly, that it was error to conclude that the written agreement was a conditional sales contract and not a straight lease; thirdly, that it was error to give effect to the alleged oral option to purchase because such an agreement violates the statute of frauds, Cal.Comm.Code § 2201 and Cal.Civ.Code § 1624(1); and finally, that the referee erred in not applying the doctrine of offset after it had been stipulated by the parties that there were rentals due Equitable under the terms of the lease.

Since we conclude that the admission of the contested oral evidence violated the Commercial Code we do not reach Equitable’s additional assignments of error.

Cal.Comm.Code § 2201(1) (West 1964) provides:

“Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.”

The comment following this code section recites that:

“Only three definite and invariable requirements as to the memorandum are made by this subsection. First, it must evidence a contract for the sale of goods; second, it must be ‘signed’, a word which includes any authentication which identifies the party to be charged; and third, it must specify a quantity.”

The lease contract, which was the only memorandum or writing offered into evidence, contains no mention of an option to purchase the two air conditioning units. To the contrary, the written agreement clearly and expressly provides for a straight lease with ownership remaining with Equitable at all times:

“a. ‘The personal property hereby leased (hereinafter called the Property) shall at all times remain and be the sole and exclusive property of Lessor, and Lessee shall have no right or title therein, . . . . ’
“b. Paragraph 5 — ‘At the expiration of the lease period or termination of the lease pursuant to the provisions hereof, Lessee will return the property to lessor in as good condition as received less normal wear, tear and depreciation.’
“c. Paragraph 11. ‘This lease constitutes the entire understanding of the parties and shall not be altered or amended except by an agreement in writing signed by the parties hereto.’ ”

Financial argues, however, that § 2201(1) of the Commercial Code is inapplicable because evidence of the oral option to purchase was introduced only to prove that the agreement was a security device and not a lease. The trustee thus argues that there was no attempt to “enforce” the option. We disagree. By its terms § 2201 of the Commercial Code applies to agreements to sell regardless of whether enforcement is sought “by way of action or defense.” As a result of the introduction of Financial’s oral evidence the trustee was able to exercise the very power it claims under the alleged purchase option agreement: the power to defeat Equitable’s reclamation action and to relegate Equitable’s claim in the air conditioning units to the position of an unperfected security interest. In our view this was “enforcement” of Financial's rights under the alleged oral agreement, and as such it was improper in the absence of “some writing sufficient to indicate that a contract for sale has been made between the parties. .” Cal.Comm.Code § 2201.

Reversed.


text:
    Mary Elizabeth WILSON, Plaintiff-Appellant, v. RETAIL CREDIT COMPANY, Defendant-Appellee.
    No. 72-2984.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 20, 1973.
    W. Roberts Wilson, Jr., Pascagoula, Miss., for plaintiff-appellant.
    Webb M. Mize, Gulfport, Miss., for defendant-appellee.
    Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

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

   PER CURIAM:

In this diversity case Mrs. Wilson appeals from the district court judgment dismissing her complaint on the ground that it is now barred by Mississippi’s statute of limitations. Miss.Code Ann. § 722 (1942). Because we affirm the district court’s judgment on the basis of Mississippi’s collateral estoppel rule, we find it unnecessary to reach the several contentions presented by Mrs. Wilson.

In an earlier action brought by Mrs. Wilson against Retail Credit Company, the district court granted summary judgment against her. We subsequently affirmed the decision of the lower court. Mary Wilson v. Retail Credit Co., 438 F.2d 1043 (5th Cir. 1971). She has now brought this action which involves the same transactions and same legal rights as did her previous action against Retail Credit Company.

Under these circumstances we think the Mississippi doctrine of collateral es-toppel is dispositive. The late Chief Justice Ethridge, of the Mississippi Supreme Court fully explicated the doctrine in his learned opinion in Garraway v. Retail Credit Co., 244 Miss. 376, 141 So.2d 727 (Miss.1962) :

Collateral estoppel is a doctrine which operates, following a final judgment, to establish conclusively a matter of fact or law for the purposes of a later lawsuit on a different cause of action between the parties to the original action. ... In short, where a question of fact essential to a judgment is actually litigated and determined by a valid and final judgment, that determination is conclusive between the parties in a subsequent suit on a different cause of action. Id. at 730.

Every citizen is entitled to his day in court; however, our judicial system was not designed as an experimental laboratory to license losing parties to bring vexatious and repetitive claims based on the same transaction.

Affirmed.

      . Mrs. Wilson's late husband instituted a similar claim which resulted in a summary judgment in favor of appellee, W. R. Wilson v. Retail Credit Co., 325 F.Supp. 460 (S.D.Miss.1971). We affirmed. 457 F.2d 1406 (1972).

      . Mrs. Wilson's original suit was instituted on the theory of libel. We affirmed the dismissal of her action because she did not bring the suit within one year as required by the Mississippi statute of limitations applicable to libel actions. Miss. Code Ann. § 742 (1942). The instant complaint is grounded in products liability, misrepresentation and deceit, invasion of privacy, and interference with property and contract rights. Regardless of the disingenuous characterization, no new facts are alleged in the present litigation which were not already decided by the previous suit.

      . See also, Seguros Tepeyac, S.A., Compania Mexicana de Seguros Generales v. Jernigan, 410 F.2d 718 (5th Cir. 1969) and 1B J. Moore, Federal Practice ¶ 0.410 [3] at. 1351-53 (2d ed. 1965).


text:
    Angelo BRUNO, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 72-1543.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 16, 1973.
    Decided March 12, 1973.

      Kenneth K. Simons, Kansas City, Mo., for plaintiff-appellant.
    J. Whitfield Moody, Asst. U. S. Atty., Kansas City, Mo., for defendant-appel-lee.
    Before HEANEY and ROSS, Circuit Judges, and BENSON, Chief District Judge.
   PER CURIAM.

On October 16, 1934, the appellant, Angelo Bruno, an alien, pleaded guilty in the Western District of Missouri to an indictment charging him with narcotic trafficking. The resulting sentence made no recommendation on the matter of deportation, a collateral consequence of conviction. In 1956, Bruno was deported pursuant to 8 U.S.C. § 1251. Subsequently, he was convicted of unlawful entrance. United States v. Bruno, 328 F.Supp. 815 (W.D.Mo.1971). Just prior to that decision, Bruno filed a petition for relief under Rule 35, attacking the deportation order arising out of the 1934 conviction. The district court, determined that Rule 35 was not appropriate to the relief sought, and treated the motion as a petition for writ of cor-am nobis, 336 F.Supp. 204.

As grounds for his motion, the appellant alleged that at the time of sentencing, he was not represented by competent counsel, and was not advised of the consequences of a guilty plea. Appellant contended he was represented by one Joseph Cartella, a nonlawyer. The district court, after a thorough review of the evidence, found the claim to be without merit and accordingly denied the petition.

On appeal, Bruno raises the sole issue of whether the district court erred in its finding that appellant’s allegation of denial of effective counsel was without substance.

The district court found that one Joseph Miniace, an attorney, had in fact represented Bruno before the United States Commissioner, and further, based on a preponderance of the credible testimony, that Bruno was offered counsel and was in fact represented by counsel in his 1934 guilty plea.

Due to the passage of years, memories fail and witnesses become sparse, making a complete reconstruction of the 1934 proceedings impossible. The district court’s examination of the evidence in the form of testimony and transcripts, however, led it to the conclusion that the proceedings giving rise to appellant’s conviction were conducted with adherence to all of the then required procedures. Judge Blair, who was an Assistant United States Attorney in 1934, and who made many appearances before Judge Albert L. Reeves (the judge who accepted appellant’s plea), testified that Judge Reeves “invariably” made sure that an accused was given appointed counsel prior to accepting a guilty plea, “no one who wanted a lawyer was denied one”. It is clear from the record that some person appeared with appellant on appellant’s 1934, October 16, 18 and 24 court appearances relating to the sentencing, but the name of that person was not shown on the docket sheets. Judge Blair related that Judge Reeves knew the members of the local bar, and would never, under any circumstances, have permitted a nonlawyer to appear as counsel for an accused.

Only when the record discloses errors of fact of such fundamental nature as to render the proceeding itself irregular and invalid or to compel action to achieve justice, will coram nobis relief be granted. Ybarra v. United States, 461 F.2d 1195 (9 Cir., 1972); United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954). The district court, in passing upon the motion for coram nobis, has the right to reject those portions which he does not believe to be true, and his findings will not be reversed where there is any competent evidence in the record, together with reasonable inferences and deductions to be drawn therefrom supporting the findings. 18 Am.Jur.2d Coram Nob-is § 7. Further in this regard, the Ybarra Court, supra, said that there is a presumption of regularity when a criminal judgment is assailed in a coram no-bis proceeding.

The evidence supports the district court’s finding on the issues presented and the court did not err in denying the petition for writ of coram nobis.

The judgment of the district court is affirmed.


text:
    Owen M. FRYE, Petitioner-Appellant, v. J. D. HENDERSON, Warden, U. S. Penitentiary, Atlanta, Georgia, Respondent-Appellee.
    No. 72-3332
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 14, 1973.

      Owen M. Frye, pro se.
    John W. Stokes, U. S. Atty., Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.
    Before JOHN R. BROWN, Chief Judge, 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:

Owen M. Frye appeals the district court’s denial of his petition for an injunction against J. D. Henderson, Warden of the United States Penitentiary at Atlanta, Georgia. We affirm.

The appellant, who is presently incarcerated in the Atlanta penitentiary, sought to enjoin the prison officials from censoring any of his outgoing mail as well as his incoming mail from his attorney, the courts and public officials on grounds that such action amounted to a denial of his right to freedom of speech and violated his attorney-client privilege. In support, the appellant submitted as exhibits, four envelopes from, inter alia, the district court and his attorney, which he alleged were “sliced open” in such a way as to damage the contents of the correspondence.

After an answer with a supporting affidavit was filed by the respondent, the district court denied the petition, finding that Frye was not entitled to relief. We agree.

“The control of prison mail is a matter of prison administration.” Brown v. Wainwright, 5th Cir. 1969, 419 F.2d 1308; O’Brien v. Blackwell, 5th Cir. 1970, 421 F.2d 844. And as the district court held, “[t]he mere censorship of a prisoner’s mail, considered often by the courts, is but a proper adjunct to prison discipline, so long as it does not interfere with a prisoner’s right to communicate with the courts.” Here, the appellant has failed to indicate, much less allege, that the manner of processing his outgoing mail has denied him free access to courts which would warrant judicial interference in this internal prison matter. Schack v. Wainwright, 5th Cir. 1968, 391 F.2d 608, cert. denied 1968, 392 U.S. 915, 88 S.Ct. 2078, 20 L.Ed.2d 1375. See also Perry v. Jones, 5th Cir. 1971, 437 F.2d 759.

Actual censorship of attorney-inmate mail — be it incoming or outgoing —might very well infringe unconstitutionally in the prisoner’s rights of access to the courts. However, the district court found on the record before it, that the mail from these sources is not being censored, but merely opened by an electric letter opener to determine whether contraband is being sent into the prison. This is a legitimate prison policy, which does not deny any federally-protected right that prisoners have. The judgment appealed from is due to be and is hereby affirmed.

Affirmed.

      . As the district court found, the damage to the contents of the letters was purely accidental and caused by temporary malfunction of the opening machine.


text:
    Mitchell HAYES et al., Appellee, v. Charles J. MORSE et al., Appellants, and Midwest Haulers, Inc.
    No. 72-1526.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 14, 1973.
    Decided March 12, 1973.
    Alan M. Levy, Milwaukee, Wis., for appellant.
    Burton H. Shostak, St. Louis, Mo., for appellee.
    Before GIBSON and ROSS, Circuit Judges, and BENSON, Chief District Judge.
   PER CURIAM.

This is an appeal from a declaratory judgment rendered on Plaintiffs’ motion, under Rule 57, Federal Rules of Civil Procedure, in a proceeding brought under 28 U.S.C. § 2201.

The appellees, owner/operators of highway tractors have, for several years, driven for Midwest Haulers, Inc., a company engaged in the trucking business. By reason of this association with Midwest, the appellees applied for pension fund benefits from the appellant, Central States, Southeast and Southwest Areas Pension Fund (“The Fund”), a trust fund jointly administered by an equal number of employees with union trustees, in accordance with Section 302(c) of the Taft-Hartley Act, 29 U.S. C. 186(e). Midwest is signatory to a Participating Agreement with The Fund. Payments in behalf of the owner/operators had been made to the Fund.

The Fund trustees declined to pay-pension benefits to the owner/operators, determining that they were not employees within the meaning of the Pension Plan. The District Court, 347 F. Supp. 1081, found the trustees’ determination was arbitrary, unsupported by substantial evidence, and erroneous on a question of law under the general common law test incorporated in Article I, Section 7(d) of the Plan, which provided :

“In all instances, the common law test, or the applicable statutory definition of master-servant relationship shall control.”

The issue presented for review was stated by the appellant, to-wit:

“The Court erred in holding that the Defendant Pension Fund Trustees acted arbitrarily and improperly when they determined that Plaintiffs were not employees for purposes of receiving pension benefits . . . ”

The appeal relates only to that part of the judgment of the District Court which determined that Appellees Shoemaker, Martin and Hayes were entitled to pension benefits.

The District Court found that substantial control of the owner/operators was in the hands of Midwest. Route assignments were delegated by Midwest and no deviation was allowed. The owner/operators could work for no one else and, in fact, were subject to call for work by Midwest during the interim they were not driving. The owner/operators were expressly forbidden to have a substitute drive their trucks unless such substitute had been approved by Midwest. Midwest financed the owner/operators’ tractors, deducting payments from their mileage payments. The tractors carried Midwest’s name and I.C.C. identification number. The Court concluded that Appellees Shoemaker, Martin and Hayes were employees entitled to pension benefits and ordered judgment entered accordingly.

The essential characteristics of master and servant relation is the retention by the employer of the right to direct and control the manner in which the work shall be performed. Fruco Const. Co. v. McClelland, 192 F.2d 241, 244 (8th Cir. 1951). This ‘right to control’ test was early enunciated by Judge Learned Hand as being the “degree to which the principal may intervene to control the details of the agent’s performance”, Radio City Music Hall Corp. v. United States, 135 F.2d 715, 717 (2nd Cir. 1943).

The Illinois cases dealing with this issue are in accord. See Henn v. Industrial Comm., 3 Ill.2d 325, 121 N.E.2d 492 (1954); Village of Creve Coeur v. Industrial Comm., 32 Ill.2d 430, 206 N.E.2d 706 (1965); Standard Accident Insurance Co. v. Industrial Comm., 39 Ill.2d 172, 233 N.E.2d 543 (1968).

The judgment of the District Court is affirmed.


author: PHILLIPS, Chief Judge.

text:
    Neville P. MATTHEWS, Petitioner-Appellant, v. John J. WINGO, Warden, Kentucky State Penitentiary, Respondent-Appellee.
    No. 72-1515.
    United States Court of Appeals, Sixth Circuit.
    Decided March 1, 1973.
    Certiorari Denied May 14, 1973.
    See 93 S.Ct. 2283.

      Neville Parker Matthews, pro se.
    Ed W. Hancock, Atty. Gen., Richard E. Fitzpatrick,. Asst. Atty. Gen., Commonwealth of Kentucky, Frankfort, Ky., on brief for respondent-appellee.
    Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and GUBOW, District Judge.

       Honorable Lawrence Gubow, Judge, United States District Court for the Eastern District of Michigan, sitting by designation.

   PHILLIPS, Chief Judge.

Neville Matthews was adjudicated of unsound mind in 1951 and was committed to a State hospital until 1954. He has never been judicially declared to have been restored to a sound mind. In 1966 he was charged with two counts of armed robbery. While represented by privately retained counsel he entered a plea of guilty to both counts and was sentenced to life imprisonment on each indictment.

No issue was raised at trial as to the competency of Matthews to stand trial. After sentencing, he filed a motion to vacate judgment under RCr 11.42 in Kentucky State court. He alleged that he had insufficient mental capacity to stand trial and therefore asked that his plea be set aside. Judge Hayes of the Jefferson Circuit Court conducted a full evidentiary hearing and denied the motion. This decision was affirmed by the Kentucky Court of Appeals, Matthews v. Commonwealth, 468 S.W.2d 313, cert. denied, 404 U.S. 966, 92 S.Ct. 341, 30 L.Ed.2d 285 (1971).

In December 1971, Matthews filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Kentucky, alleging a violation of due process of law in that he was convicted at a time when he was not competent to enter a plea. His sole contention was that since he was never judicially declared to be restored to sound mind, he was incompetent. This petition was denied. No evidentiary hearing was held, the District Court relying upon the evidence presented at the State hearing. This decision was not appealed. Matthews filed a second petition for a writ of habeas corpus in which he alleged again that he was incompetent to enter a plea for the same reasons as averred before, and further that he was denied the effective assistance of counsel. This petition also was denied. The issue of the competence of Matthews was rejected on the basis of the prior adjudication, and the assistance of counsel issue was denied for failure to exhaust State court remedies.

We affirm.

The District Court had the right to reject the second petition to the extent it raised the same issues as had been resolved at the first proceeding. Under 28 U.S.C. § 2244(b) and the doctrine of Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), a federal district court may deny a petition for a writ of habeas corpus where the ground presented in the second petition has been determined, on the merits, adversely to the petitioner at a prior habeas corpus proceeding, and the ends of justice would not be served by reaching the merits again, 373 U.S. at 15, 83 S.Ct. 1068. Here the issue of the competency of Matthews had been previously determined and rejected in the first petition.

The first dismissal was a proper adjudication on the merits even though no evidentiary hearing was held. 28 U. S.C. § 2254(d); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

Since Matthews did not raise the assistance of counsel contention before the Kentucky courts, the District Court dismissed the claim for failure to exhaust State court remedies. However, this court consistently has held that where resort to a State court would be a mere exercise in futility, the exhaustion requirement will not be applied. Allen v. Perini, 424 F.2d 134 (6th Cir.), cert. denied, 400 U.S. 906, 91 S.Ct. 147, 27 L.Ed.2d 143 (1970); Lucas v. Michigan, 420 F.2d 259 (6th Cir. 1970); Coley v. Alvis, 381 F.2d 870 (6th Cir. 1967). We believe that since Matthews previously has petitioned the Kentucky courts to vacate his sentence under the Kentucky post conviction relief provision, a subsequent motion would be denied without a hearing. RCr 11.42(3); See Walker v. Wingo, 398 S.W.2d 885 (Ky.1966). RCr 11.42(3) provides:

“The motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding.”

In view of this requirement, we believe that any effort by Matthews to return this issue to the Kentucky courts would be futile.

It does not necessarily follow that a remand for an evidentiary hearing is required. If a criminal defendant is to prevail on an allegation of ineffective assistance of counsel he must demonstrate that what was done or not done by his attorney made his defense a farce and mockery of justice that would be shocking to the conscience of the court. Hayes v. Russell, 405 F.2d 859 (6th Cir. 1969); Schaber v. Maxwell, 348 F.2d 664 (6th Cir. 1965). In the instant case, we hold that even when the contentions and averments of Matthews are taken in the light most favorable to him, they still are insufficient to require an evidentiary hearing. The contentions are highly conclusory in nature. The only specific assertion is the allegation that since his counsel did not raise the issue of the competency of Matthews to enter a plea, he obviously was ineffective. The idea that Matthews was incompetent to enter a plea simply because of his adjudication of insanity fifteen years earlier has been previously rejected. Matthews has alleged nothing else to indicate that his attorney should have interposed the defense of insanity. Only the bald assertion of ineffective assistance of counsel remains. This assertion is not, by itself, sufficient to require an evidentiary hearing. Therefore we affirm the result reached by the District Court.


text:
    The MAGNAVOX COMPANY OF TENNESSEE, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO AND ITS LOCAL 796, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    Nos. 72-1121, 72-1201.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 16, 1972.
    Decided March 8, 1973.
    George K. McPherson, Jr., Atlanta, Ga., for The Magnavox Co. of Tennessee; Ronald H. Janetzke, Kettering, Ohio, for International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC and Its Local 796, Petitioners; James Allan Smith, Smith, Currie & Hancock, Atlanta, Ga., on brief, for The Magnavox Co. of Tennessee.
    Walter Phillips, Director Region 10, N.L.R.B., Atlanta, Ga., Abigail Cooley Baskir, National Labor Relations Board, for respondent-appellee; Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, on brief.
    Before EDWARDS and McCREE, Circuit Judges, and CECIL, Senior Circuit Judge.
   PER CURIAM.

We consider petitions to review and a cross-application for enforcement of an order of the National Labor Relations Board. The Decision and Order of the Board is reported at 195 N.L.R.B. No. 40. The petitions have been consolidated for hearing and disposition.

The complaint charged that the company violated Section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), by prohibiting its employees from distributing literature on behalf of the Union during the employees’ non-working time in non-working areas of the company’s premises. The Board found that for many years the company has maintained a rule prohibiting the distribution of literature on its parking lots and on other company property. Although the Board determined that such a rule is presumptively invalid under the standards in Stoddard Quirk Manufacturing Company, 138 N.L.R.B. 651, it observed that the company had interposed as a defense to the complaint the contention that the Union had contractually waived any objection it might have to the no-distribution rule.

It then determined that the Union could not contractually agree to the prohibitions of the no-distribution rule to restrict the dissemination of literature in opposition to any labor organization or on behalf of any labor organization. In this respect, it amended its Gale Products rule and followed the decision of the Eighth Circuit in Int. Ass’n of Mach. & Wkrs. Dist. No. 9 v. N. L. R. B., 415 F.2d 113 (1969). It elected not to follow the rule in our circuit enunciated in Armco Steel Corporation v. N. L. R. B., 344 F.2d 621 (1965), and in General Motors Corporation v. N. L. R. B., 345 F.2d 516 (1965). The Board's order required the company to cease and desist from maintaining or enforcing any rule which prohibits distribution in nonworking areas on non-working time on behalf of any labor organization relating to the selection or rejection of a labor organization as the exclusive bargaining agent of the employees in a unit appropriate for collective bargaining, or other matters related to the exercise of Section 7 rights. It also required posting of appropriate notices.

We determine that substantial evidence on the record as a whole supports the Board’s factual findings. However, on a less restricted review we might have found that the contract provision permitting the company to issue rules and regulations did not waive the right to distribute literature even in the context of a preexisting no-distribution rule. Waiver of a right of such importance should be the subject of an express provision.

However, we are not persuaded that our ruling in Armco Steel should be overturned at this time, and we adhere to the position that the bargaining representative has authority to waive on-premises distribution rights of the employees at least in the absence of special circumstances not present here. The petition of Magnavox to review is granted and the order will be set aside and enforcement will be denied.

Enforcement denied, review granted.

      . In Gale Products Div. of Outboard Marine Corp., 142 N.L.R.B. 1246, enforcement denied 337 F.2d 390 (7th Cir. 1964), the Board held that although certain statutory rights may be waived by a labor organization on behalf of employees whom it represents, an unlimited contractual probition against union solicitation and distribution would unduly hamper the employees in exercising their basic rights under the Act to select or reject a bargaining agent. Accordingly, it determined that a bargaining representative could waive solicitation on its own behalf but could not waive the right of employees to solicit on behalf of a labor organization other than the contracting one. Following Gale in another case, the Board said, “neither an employer nor an incumbent union is entitled to attempt to freeze out another union by waiving the employees’ right to urge a change in their collective-bargaining representative.” General Motors Corporation, 158 N.L.R.B. 1723, 1726 (1965).

      . “The Company will from time to time issue Rules and Regulations for the maintenance of orderly conditions on plant property. These rules will not be unfair or of a discriminatory nature. . . .”

      . “You are asked to refrain from distributing notices or handbills in the parking lots or on other Company property.”


text:
    UNITED STATES of America, Plaintiff and Appellee, v. Raymondo ROBLES-PEREZ, Defendant-Appellant.
    No. 72-1789.
    United States Court of Appeals, Ninth Circuit.
    March 9, 1973.
    J. Perry Langford, Edgar G. Lang-ford, of Langford & Langford, San Diego, Cal., for defendant-appellant.
    Harry D. Steward, U. S. Atty., Jeffrey F. Arbetman, Donald F. Shanahan, and Stephen G. Nelson, Asst. U. S. Attys., San Diego, Cal., for plaintiff-appellee.
    Before ELY and HUFSTEDLER, Circuit Judges, and SMITH, District Judge.

       Honorable Talbot Smith, United States Judge for the Eastern District of Michigan, sitting by designation.

   PER CURIAM:

Appellant was convicted for transporting three aliens who he knew were illegally in the United States. (8 U.S.C. § 1324(a)(2).) The Government’s case in chief consisted of the testimony (1) of Mr. Leupp, a border patrol agent, who stopped appellant’s car and who discovered that the passengers were illegal aliens, and (2) of two of the three alien girls. Their testimony, if credited, amply supported the elements of transportation and alienage. The key issue was appellants’ knowledge of their illegal alien status. The aliens also testified that they never saw appellant until he picked them up as they were hitchhiking, after some unidentified people took them across the border and dropped them, following the driver’s objection to their luggage. The only testimony that linked appellant to the aliens prior to his pickup and that tended to prove that appellant knew the girls were illegally in the country was Agent Leupp’s testimony, admitted over hearsay objection, that the aliens told him, outside the presence of appellant, that they had seen appellant in Mexico, and he was awaiting them as they crossed the border.

The Government concedes, as it must, that the key testimony was hearsay; it argues, however, that it was admissible because appellant’s counsel opened the door by inquiring into part of that conversation on cross-examination. The question is a close one because the development of the testimony on direct and cross is rather fuzzy. However, it seems that there were two conversations between the aliens and the agent, one of them in appellant’s presence and one outside his presence. Appellant’s counsel tried to confine Agent Leupp to the first conversation. On redirect, the prosecution started into the second conversation. Upon ascertaining that appellant was not then present, appellant’s counsel interposed the hearsay objection. The court overruled it, and the agent gave the damaging hearsay testimony. We think that this course of events did not open the door to the second conversation. Without the second conversation, the evidence was insufficient to go to the jury on the knowledge element. Appellant’s motion to acquit should have been granted at the conclusion of the Government’s case in chief.

The judgment is reversed with directions to dismiss the indictment.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNIVERSAL MANUFACTURING & SUPPLY CO., Respondent.
    No. 72-2227.
    United States Court of Appeals, Fourth Circuit.
    Submitted Feb. 15, 1973.
    Decided March 8, 1973.
    Peter G. Nash, Gen. Counsel, N. L. R. B. , Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Joseph E. Mayer, and Wil-iam H. DuRoss, III, Washington, D. C., for the petitioner.
    Yelverton Cowherd, Jr., Columbia, S. C. , and George H. Grant, Aiken, S. C., for respondent.
    Before BUTZNER, RUSSELL and FIELD, Circuit Judges.
   PER CURIAM:

On July 31, 1972 the National Labor Relations Board found that Universal Manufacturing & Supply Company had violated § 8(a)(1) of the National Labor Relations Act by engaging in unlawful surveillance of a union meeting and unlawfully interrogating an employee. The Board also found that Universal violated § 8(a)(3) and (1) of the Act by laying off two employees, Rodney Ready and Robert Wright, because of their pro-union activities. The decision and order are reported at 198 NLRB No. 88. Upon consideration of the briefs and administrative record, we enforce the Board’s order without oral argument because it is supported by substantial evidence.

Enforcement granted.


text:
    Leonard ROBINSON and Isaac Bailey, Petitioners-Appellants, v. STATE OF TENNESSEE and Weldon Cox, Warden, Tennessee State Penitentiary, Respondents-Appellees.
    No. 72-1547.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 5, 1973.
    Decided March 7, 1973.
    Lowry F. Kline (Court appointed), Chattanooga, Tenn., for petitioners-appellants.
    R. Jackson Rose, Asst. Atty. Gen., Nashville, Tenn., David M. Pack, Atty. Gen., of counsel, for respondents-appel-lees.
    Before PHILLIPS, Chief Judge, and EDWARDS and MILLER, Circuit Judges.
   PER CURIAM.

Appellants appeal from denial of their petitions for writs of habeas corpus by the United States District Court for the Eastern District of Tennessee, Southern Division. They present three appellate claims: 1) denial of effective assistance of counsel at their state court trial; 2) denial of due process in being refused the opportunity to call a particular witness, and 3) denial of due process by prejudicial remarks of the prosecuting attorney in his jury argument.

On review of the appellate briefs and oral arguments the two orders filed by the District Judge in the District Court proceedings and the transcripts of the two state court trials, we affirm the judgment of the District Court denying habeas corpus relief, 340 F.Supp. 82.

The remarks of the prosecutor complained of clearly do not rise to federal constitutional dimensions.

The refusal of the state trial judge to allow a witness to testify when such witness had been in the courtroom all during the trial, in violation of a sequestration order, was within the discretion vested in the trial judge. See United States v. Brooks, 303 F.2d 851 (6th Cir. 1962). It certainly did not represent any deprivation of appellants’ constitutional rights. Review of the first state court trial record shows conclusively that the witness was not an eyewitness to the killing and that his testimony would have been of little if any help to appellants.

Additionally, the record discloses that separate counsel had been appointed for each appellant, but that appellant Bailey voluntarily discharged his appointed counsel and retained the same counsel who had been appointed for appellant Robinson. In this set of circumstances, we find no deprivation of the Sixth Amendment right to counsel.

The judgment of the District Court is affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Oscar ROCA-ALVAREZ and Rene Valdez, Defendants-Appellants.
    No. 30554.
    United States Court of Appeals, Fifth Circuit.
    Feb. 14, 1973.
    Shaya Estrumsa, Miami, Fla. (Court Appointed), for Oscar Roca-Alvarez.
    Gino P. Negretti, Miami, Fla., for Rene Valdez.
    Robert W. Rust, U. S. Atty., Neal R. Sonnett, Harold F. Keefe, Asst. U. S. Attys., Miami, Fla., for the United States.
    Before GEWIN, GOLDBERG and DYER, Circuit Judges.
   ON PETITION FOR REHEARING

PER CURIAM:

It is ordered that the motion for rehearing filed on behalf of Appellant, Oscar Roca-Alvarez, in the above cause is hereby granted.

“In view of the doubts and ambiguities regarding the legal significance of the psychiatric testimony in this case and the resulting difficulties of retrospectively determining the petitioner’s competency” as of more than two years after trial, we reverse the judgment of conviction, “and remand the case to the District Court for a new hearing to ascertain petitioner’s present competency to stand trial, and for a new trial if petitioner is found competent.” Dusky v. United States, 1960, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824.


text:
    Jamie N. MOYE, Petitioner-Appellant, v. CLERK, DeKALB COUNTY SUPERIOR COURT, Respondent-Appellee.
    No. 72-3161
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 9, 1973.
    William R. Gignilliat, III, Atlanta, Ga. (Court Appointed), for petitioner-appellant.
    Robert E. Mozley, Decatur, Ga., for respondent-appellee.
    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:

Jamie N. Moye, a prisoner of the State of Georgia, filed a pro se petition in the Northern District of Georgia requesting the court to compel the clerk of the DeKalb County Superior Coprt to comply with his request for production of the transcript and other documents relating to his state conviction. He. alleged a need for them as a basic tool necessary for the preparation of his state appeal process.

The district court, construing the request as a petition for a writ of mandamus, summarily dismissed it for failure to exhaust state remedies.

On appeal Moye alleges that he made numerous motions to the state court seeking production but has received no ruling thereon. The respondent herein has failed to file a brief.

Although the writ of mandamus was abolished by Fed.R.Civ.P. 81(b), federal courts may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law, 28 U.S. C. § 1651. But a federal court lacks the general power to issue writs of mandamus to direct state courts and their judicial officers in the performance oí their duties where mandamus is the only relief sought. Lamar v. 118th Judicial District Court of Texas, 440 F.2d 383 (5th Cir., 1971); Haggard v. Tennessee, 421 F.2d 1384 (6th Cir., 1970).

Since the present request sought only mandamus relief, it was properly denied.

The judgment of the district court is affirmed.