author: McALLISTER, Senior Circuit Judge. WILLIAM E. MILLER, Circuit Judge

text:
    Thomas COX, Individually and on Behalf of his minor child, Duane Cox, Plaintiffs-Appellants, v. The Honorable Robert TURLEY, Individually, as a Member of the Madison County Fiscal Court and as Madison County Juvenile Judge, et al., Defendants-Appellees.
    No. 73-1856.
    United States Court of Appeals, Sixth Circuit.
    Nov. 22, 1974.
    Robert A. Sedler, Anthea M. Boarman, Lexington, Ky., for plaintiffs-appellants.
    Thomas D. Shumate, Shumate, Shumate & Flaherty, Charles R. Coy, Coy & Coy, George W. Robbins, Madison County Atty., Richmond, Ky., for defendants-appellees.
    Before McCREE and MILLER, Circuit Judges, and McALLISTER, Senior Circuit Judge.
   McALLISTER, Senior Circuit Judge.

This is an appeal from an order of the District Court dismissing plaintiff’s complaint for injunctive and declaratory relief for defendants’ alleged violation of plaintiff’s rights under the Fourth Amendment, the Eighth Amendment, and the due process and equal protection clause of the Fourteenth Amendment of the Constitution of the United- States.

The complaint was brought by Thomas Cox, on behalf of his 16-year-old son, Duane Cox, and on behalf of all other juveniles residing within the confines of Madison County, Kentucky; the parents of all juveniles so situated; all juveniles who will be within the confines of Madison County, and the parents of all juveniles so situated. He alleged that there are common questions of law and fact affecting the rights of plaintiffs class relating to the pattern of practice of defendants, acting individually and in concert in the placement of juveniles in the Madison County jail, with each action violating the Constitution of the United States. He further alleged that the members of the class were so numerous as to make joinder of them impossible and impractical, and that common relief was sought against defendants’ illegal acts and failure to act; and that they have, by pattern of practice, individually and in concert, acted in a manner generally applicable to the plaintiff’s class and that common relief is sought by this action against defendants’ illegal acts and failure to act.

The defendants were all officials concerned, by state law, with the arrest, provisions for custody, and judicial determination of rights of juveniles.

The District Court held that the plaintiff failed to carry his burden of proof that the class he represented was deprived of rights guaranteed by the Federal Constitution. However, plaintiff’s counsel was given no opportunity to introduce evidence to show that plaintiff had carried such burden of proof, as the case was dismissed on motion, with no evidence being offered. The rule governing this situation has recently been announced by the United States Supreme Court in the case of Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), as follows:

“When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test. Moreover, it is well established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.
“‘[I]n appraising the sufficiency of the complaint wé follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ Conley v. Gibson, 355 U.S. 41, 45 [78 S.Ct. 99, 102, 2 L.Ed.2d 80] (1957).”

The Court also held that whether the allegations contained in the complaint setting forth a failure of some or all of the defendants to comply with state law were immaterial, such failure would not constitute a denial of due process under the Federal Constitution, citing Anderson v. Nosser, 438 F.2d 183 (C.A. 5, 1971).

This is a juvenile case. The Juvenile Court is a comparatively new institution. It is surprising so little is known about it.

“A new generation of lawyers, judges, social workers, and other professionals has come into being since the juvenile court was founded.”
“The stream of reform that culminated in creating the first state-wide juvenile court in Illinois on July 1, 1899, sprang from such apparently disparate headwaters as the activity of philanthropic associations on behalf of street urchins, waifs, and wayward and misdemeanant youngsters; the growth of laws preventing cruelty to children and rescuing the dependent and neglected. * * * Most would agree with Judge Julian Mack that a crucial element was lacking prior to the passage of the Act: ‘What we did not have was the conception that a child that broke the law was to be dealt with by the state as a wise parent would deal with a wayward child.’ ”

In the case of In Re Gault, 387 U.S. 1, 14, 87 S.Ct. 1428, 1437, 18 L.Ed.2d 527, Mr. Justice Fortas, speaking for the Coui’t said:

“The juvenile Court movement began in this country at the end of the last century. From the juvenile court statute adopted in Illinois in 1899, the system has spread to every State in the Union, the District of Columbia, and Puerto Rico. * * *
“The early reformers were appalled by adult procedures and penalties, and by the fact that children could be given long prison sentences and mixed in jails with hardened criminals.”

And, in the same case, Mr. Justice Stewart observed:

“In the last 70 years many dedicated men and women have devoted their professional lives to the enlightened task of bringing us out of the dark world of Charles Dickens in meeting our responsibilities to the child in orir society.” Supra, p. 79, 87 S.Ct. p. 1470.

In some jurisdictions where the police operate a detention home in cases where the child is unable to be turned over to his parents, police are entrusted with deciding whether or not the arrested child should be detained. Teeters and Reineman, The Challenge of Delinquency; Causation, Treatment, and Prevention of Juvenile Delinquency (New York; Prentice-Hall, 1950, p. 228.)

“Most detention homes violate the very principles of mental hygiene which were violated in the child’s own home — denial of love and emotional security, lack of meaningful activity, little opportunity to make successful choices, and so forth.” Sherman R. Norman, “The Detention Home,” Annals of the American Academy of Political and Social Science, CCXLI (January 1949) p. 161.
“Outright cruelty is not unknown in some of the country’s detention centers, to say nothing of dismal, crowded quarters and a staff calloused in spirit by overwork and inadequate facilities. In the case of children detained in such an institution, who are charged but not yet adjudicated as delinquents, the mockery is deplorable enough. It is outrageous in the case of neglected and dependent children; yet such occurrences are riot infrequent.” ibid. p. 159.

To return to the facts of the present cause, the case arises out of the following circumstances as alleged by appellant: Duane Cox, a boy 16 years old, was walking down a street in the town of Richmond in Madison County, Kentucky, on a summer evening, Saturday, August 12, 1972. He was doing nothing to attract attention and, apparently, was only visiting the town in the county in which his cousin lived, adjoining the one in which he lived with his parents. A police officer arrested the boy for violation of the curfew law, took him to the Madison County jail and lodged him there on the verbal telephoned orders of defendant, Robert Turley, a non-lawyer judge, in charge of such juvenile affairs, as is the established custom of the defendants. When the boy was taken to jail, he asked for the right to telephone his father, to tell him where he was, and of his need for help. This request of the boy was abruptly refused. The boy was then lodged with the jailer of the Madison County jail. There was no hearing of any kind before the boy was turned over to the jailer.

The police officer who arrested the boy did not notify the parents or release the boy with a written promise to appear at a specified time, as provided by the Kentucky Statutes. The boy was not taken before any judicial officer before his incarceration.

On the fifth day after the arrest and imprisonment, defendant Robert Turley, the non-lawyer judge, had the boy brought before him. There is no record of what was said, as the case comes before us only on the pleadings, briefs and Joint Appendix. All that appears is that when the boy came before the judge, he was ordered to have a hair-cut, to shave his beard, and to appear before him a week later, on August 25, 1972, to show that such action had been taken. The boy was then released to his father with a promise to return on the above-mentioned date. The order of the court was obviously unlawful and arbitrary.

After the boy had complied with this order, he was released to his father, pending juvenile court proceedings— about which nothing so far has been done.

The boy in this ease was never arraigned. “To arraign is nothing else but to call the person to the bar of the court to answer the matter charged upon him in the indictment.” 3 Bl.Com. 322, 323, 341. The boy was denied his federal constitutional rights by being deprived of his liberty without due process of law. He was simply arrested and taken to jail, placed in the hands of the turnkey, and then confined with the general prison population.

As to the observation that the boy was confined to a jail cell with no contact whatever with other offenders, either adult or juvenile, the record does not show the boy’s confinement to a cell but rather imprisonment in an “adult jail facility.” It is almost unthinkable that a boy would be locked in a cell in solitary confinement from Saturday night to Wednesday morning, incommunicado, for the offense of being out after curfew, and plaintiff makes no suggestion that such monstrous mistreatment was indulged in. If the boy was confined in “an adult jail facility,” as contended by plaintiff, it may be that he was confined to a cell at night, as prisoners usually are. But prisoners in a prison or jail mingle with each other on various and numerous occasions, and it is this intermingling of juvenile and adult offenders that the law forcefully commands shall not be permitted by prison or jail authorities. Courts take judicial notice that a general prison population includes criminals of all types, young and old, dangerous, of every character. And the courts also particularly take judicial notice that it is not uncommon to find the indiscriminate mixing of hardened criminals, including sexual assaulters, with young offenders. People v. Terry Lee Harmon, 53 Mich.App. 482, 220 N.W.2d 212 (decided May 30, 1974).

It is to observed that in many of the jails in this Circuit — federal as well as state — judges have forbidden the police to imprison arrested juveniles with the general prison population because of the danger to them of association with hardened criminals and to protect them from sexual assaults.

In the accompanying opinion, it is observed that:

“No court, to my knowledge, has ever held that confinement of a juvenile in a county jail for the comparatively brief period of five days without the benefit of recreational or educational facilities, or psychological treatment programs, or books or reading materials, constituted cruel and unusual punishment.”

As I see it, this is not the point or issue on which the disposition of this case depends. In the first place, the juvenile was held, without charge or arraignment, in the county jail contrary to the state law — and the county judge and police knew he was being held in violation of the state law; and the boy was further being held in the jail in derogation of his rights under the federal constitution.

To clarify the problem, the “cruel and unusual punishment” in this case does not reside in the above-quoted language of the concurring opinion. Rather, it is the ever-present peril of dangerous assault upon both the body and mind of the boy that is one of the constituents of cruelty that comes from confining this young boy with the general prison population. It is well known that the younger the boy who is confined, the more immediate is the danger to him. All of the foregoing is well illustrated by reference to the Reader’s Digest issue of November, 1973. That issue carried an account of an interview concerning child arrests that casts a baleful light on the problem before us. Donald Robinson was interviewing Milton G. Rector, President of the National Council on Crime and Delinquency. In answer to the question, “Can you teach a child a lesson by letting him stay in jail a couple of nights?”, Mr. Rector answered:

“No child deserves that kind of lesson. Being in jail is a traumatizing experience for youngsters. Some are brutalized. Some hurt themselves. All are further alienated from their parents. Just recently, a ease came across my desk of a 17-year old college freshman, who was arrested because police found marijuana in his dormitary room. The boy’s father let the police keep him in jail overnight. When he got there in the morning, the boy’s nose was broken and both his eyes blackened — the result of a fight begun when older, tougher prisoners tried to gang-rape the younger boys.” What To Do If Your Child Is Arrested, Reader’s Digest, Nov. 1973, pp. 167-168.

No notice was given him or his parents of the cause of his arrest. There was no probable cause hearing. The due process clause requires that notice of the charge must be given to the accused at the earliest practicable time and, in any event, sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare mil be afforded, and it must “set forth the alleged misconduct with particularity.” In Re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 1446, 18 L.Ed.2d 527. It is said by counsel for appellees that there was no need to charge the boy because he knew the reason for his arrest. “It may be probable that the defendant in this case was perfectly aware of the offense with which he was charged. It appears that he consented to go to trial, but a trial of what did he consent to? He was arrested and held in custody under the process of the court. It was his right to be informed, and it was the duty of the government to inform him of the accusation against him. This is done by arraignment and requiring the defendant to plead. * * * [A] plea, an issue, is absolutely essential.” Crain v. United States, 162 U.S. 625, 639, 640, 16 S.Ct. 952, 957, 40 L.Ed. 1097. “Until the defendant has pleaded to the indictment, there is no issue to be submitted to the jury, and the omission to plead is fatal to the judgment, even after verdict. This rule applies as well to cases of misdemeanor as to cases of felony.” Shelp v. United States (9th Cir.) 81 F. 694, 701. “[D]ue process of law requires that the accused * * * plead, or, in a proper case, that a plea of not guilty be filed for him, before his trial can rightfully proceed.” Crain v. United States, 162 U.S. 625, 645, 16 S.Ct. 952, 959, 40 L.Ed. 1097.

A boy 16 years old is not to be slighted and his rights bandied about because of his youth by a lay judge who knows nothing of the treatment to be accorded citizens, due to his lack of experience and training in the rigorous discipline of the law. There is something rather offensive to moral decency in considering the police officer telephoning the judge that he had arrested the boy, and the judge’s immediate consent that the boy be forthwith locked up in the jail, without the right to call his father — all in violation of the law. It is difficult to define the relationship between the judge, the police officer, and the turnkey, as anything else but a well-understood collusion and connivance, and avoidance of the law.

A boy 16 years old is not to be slighted and ignored by a court because of his youth, and he is not to be arrested, denied the right to call his father or counsel, imprisoned without a charge placed against him, and without even being arraigned, anymore than a judge of this court is to be so treated for a trivial misdemeanor. Of course, an adult could recover his freedom by writ of habeas corpus, which right the child, in this case, does not, incongruously and incompatibly, have — because of the duty of the state to protect him during these tender years, in every way, protecting him against being imprisoned with the general prison population, placing him immediately in the custody of his parents until his case is called — none of which was observed in this case.

The action taken by the judge, police, and jail authorities in this case, in derogation of the constitutional rights of an American citizen, is not to be gently tolerated by this court, because of niceties of pleading.

The boy was deprived of his constitutional rights under the due process clause by reason of his confinement with the general jail population without a charge lodged against him, without being arraigned, and without being taken before any judicial officer, “at the earliest practicable time” as prescribed in the case of In Re Gault, supra, and without being given any notice of his alleged offense. Moreover, the officer’s refusal to permit the boy to make a telephone call to his parents when he was taken to jail, and the refusal of the arresting officer to notify the boy’s parents, as commanded by the Kentucky statutes, together with his confinement with the general jail population without a probable cause hearing, constituted cruel and unusual punishment, in violation of the boy’s rights under the Eighth Amendment to the Federal Constitution.

The ordinary man can well contemplate the state of mind of this boy, arrested by a police officer, taken to jail, refused the right to call his parents to tell them where he was, turned over to the turnkey to be incarcerated with the jail population, in which it is not uncommon to find the indiscriminate mixing of hardened criminals, including degenerates, with young offenders — for a period of five days, with no way of communicating with relatives or friends.

With regard to the standards for determining cruel and unusual punishment, certainly one of the standards is conduct which “shocks the most fundamental instincts of civilized man.” Louisiana ex rel. Francis v. Resweber, Sheriff, et al., 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422, or is a method of punishment which violates “the evolving standards of decency that mark the progress of a maturing society.” (Emphasis supplied.) Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630. The Eighth Amendment “is not fastened to the obsolete *. * Wright v. McMann, 387 F.2d 519, 525 (C.A.2, 1967).

What Judge Feinberg said in Sostre v. McGinnis, 442 F.2d 178, 208 (C.A.2, 1971), is here applicable:

“What might once have been acceptable does not necessarily determine what is ‘cruel and unusual’ today. * * * In this Orwellian age, punishment that endangers sanity, no less than physical injury by the strap, is prohibited by the Constitution. Indeed, we have learned * * * that true inhumanity seeks to destroy the psyche rather than merely the body.”

As Dean Francis A. Allen, in his admirable book, “The Borderland of Criminal Justice,’’ states on page 37:

“There is one proposition which, if generally understood, would contribute more to clear thinking on these matters than any other. It is not á new insight. Garafalo asserted: ‘The mere deprivation of liberty, however benign the administration of the place of confinement, is undeniably punishment.’ ” (Emphasis supplied.)

The worst and most illegal feature of all these proceedings is in lodging the child with the general population of the jail, without his ever seeing some official of the court.

Judge Orman W. Ketcham, Judge of the Juvenile Court of the District of Columbia, Member of the Executive Committee, Advisory Council of Judges, National Council on Crime and Delinquency, formerly with the Department of Justice, in a contribution to a brilliantly-edited symposium on the subject by Margaret K. Rosenheim, Professor of Social Service Administration, University of Chicago, Justice for the Child, says:

“Prohibition against Use of Jails. During adolescence a child is presumed to be most impressionable. Consequently, it has long been recognized that a child’s close contact with an adult can serve either a good or a bad purpose depending on the proclivities of the adult. With this in mind, the state promises that no child will be imprisoned or placed in a jail or lockup lest the state abet the downfall of a child by confining him with adult offenders. It also promises that the child will not otherwise be brought into contact with adult criminals or commingled with vicious or immoral persons.”

It is astonishing that, although the trivial violation of the rule of curfew was committed by a 16-year-old boy (and it is difficult to imagine a more trivial violation), he has been subjected to all the various violations of law by the authorities. When he finally appeared before the juvenile judge, after confinement in jail with the common criminal population from Saturday evening until the following Wednesday, he was told by the judge to have his hair cut and was then released to his father. But the release to his father was merely to continue the custody of the boy, still subject to the court for trial on the violation of the curfew. That was on Wednesday, August 16, 1972, but the charge of violation of the curfew is still pending on this trivial matter — nearly twenty months after his appearance before the judge. There appears no possible reason for the court’s continuing such custody. To continue and keep continuing this custody for twenty months after what the boy has gone through, seems an inexplicable injustice. Both the Fourth Amendment and the Fifth Amendment were violated because there was no prompt determination of probable cause — a constitutional mandate that protects juveniles as well as adults. Cooley v. Stone, 134 U.S.App.D.C. 317, 414 F.2d 1213 (1969). The fact that a juvenile who was arrested was not deprived of his freedom but was left in the custody of his mother did not remove him from the protection of the Fourth Amendment, and he was entitled to a hearing to determine if there was probable cause to hold him for trial. The right to be free of a seizure of one’s person made without probable cause does not depend upon the character of the subsequent custody. Brown v. Fauntleroy, 143 U.S.App.D.C. 116, 442 F.2d 838 (1971).

In discussing a holding by a District Court that once a plea of guilty is accepted by a court of competent jurisdiction, jeopardy immediately attached as a result of proceedings in the Juvenile Court, the United States Court of Appeals stated:

“The District Court relied on some early state cases * * *. But those cases throw little light on the issue before us. They are traditional criminal proceedings, which are essentially accusatory, adversary and punitive. Consequently, they involve considerations which are not relevant to the non-criminal parens patriae proceedings of the Juvenile Court.” United States v. Dickerson, 106 U.S.App.D.C. 221, 271 F.2d 487, 491 (1959).

In commenting on the above, Judge Paul W. Alexander of the Common Pleas Court of Lucas County, Ohio, stated:

“These trenchant last words leave little more to be said. In our American culture, there are now four institutions, each charged with certain distinctive responsibilities in the upbringing of children in the way they should go. They are home, church, school and juvenile court, the latter said by Roscoe Pound to be the greatest forward step in Anglo-American jurisprudence since the Magna Char-ta. To deny the juvenile court a fair trial is to deny the child himself a fair trial. To deprive the court of its rightful status, to impair its potential effectiveness is to deprive a child of not merely constitutional rights but of many invaluable rights regarded as the birthright of every American child. It is like denying a sick child the right to a good hospital. * * * Justice to a child must be more than due process of law and fair legal treatment. .No abstract right can be as sacred as a human child.” (Emphasis supplied.)

The following have been listed by the National Probation and Parole Association as desired qualifications of a juvenile-court judge:

The experiences of an attorney who has been successful in practice and who is conversant with the rules of law and the ways of the courtroom.
Intellectual flexibility and the capacity to absorb the elements of new disciplines, particularly in the behavioral sciences, and to utilize the guidance and skill of professionally trained people in these various disciplines.
An emotional capacity for understanding, sympathy, and dedication to his task of helping people, coupled with a strong sense of fairness.
The will to work hard and the physical stamina to put in long hours.
The ability to see community needs and the capacity to act as a leader in helping the community develop or create services and facilities for the welfare of children and families.
The willingness and capacity to work with all interested people and agencies who want to help children and families.
Humility toward his responsibilities —humility that is derived from a critical self-awareness of his intellectual and emotional weaknesses and biases.
These qualifications provide a background against which every judge may wish to examine himself toward doing a better job. He can affect for the better the lives of countless individuals, and the effects of his approach and his decisions will carry over long after he has left the bench. The breadth of this influence is seen in the words of Dean Roscoe Pound:
“The establishment of the juvenile court is one of the most significant advances in the administration of justice since the Magna Charta.” (Emphasis supplied.)

Apart from the summary punishment aspect, the Fourth and Fifth Amendments simply prohibit the incarceration of persons — including juveniles — without a prior judicial determination of probable cause to believe that the person has committed an offense — “nor shall any person * * * be deprived of * * liberty, * * * without due process of law.”

There is a provision in Kentucky Revised Statutes, 208.110(3) requiring the peace officer who has taken the child into custody to notify the parents and to release the child to his parents, “[ujnless the nature of the offense or other circumstances are such as to indicate the necessity of keeping the child in secure custody, or unless other directions have been given by the court.” No notification was given to the parents in this case. It must be conceded that the nature of his offense or of any other circumstances was not such as to indicate the necessity of keeping the child in secure custody. When taken to the jail, the child asked to be allowed to telephone his father, or to have someone telephone his father to tell him where he was and what had happened to him. This request was absolutely refused. In any case, a person arrested is allowed one telephone call to his family, or friends, or lawyer. The only excuse for not allowing the child to call his father when he was arrested must then be that other directions were given by the court. The willingness of the court to order confinement without having seen or heard from the boy and without having personally observed his conduct or his character, indicates to us that his order was not merely an isolated act, but instead the usual treatment given to all juveniles arrested for being out after curfew. Where a judge adopts the same treatment for all persons having committed a similar offense, however trivial, such treatment is summary and arbitrary and must be set aside.

It is emphasized by counsel for defendants that the boy was charged with violation of state statutes, and it is not within the jurisdiction of a federal court to pass upon the validity of state statutes; but, in this case, the violation of the state statutes constituted a violation of the boy’s rights under the Federal Constitution.

We are of the opinion that the constitutional rights of plaintiff’s son were violated, as heretofore set forth. By failing to arraign the boy and by keeping him in custody, denying him any rights to communicate with his parents, and without releasing the boy to his parents in accordance with the Kentucky statutes, and by failing to give notice of the cause of his arrest within the earliest practicable time, he was deprived of his liberty in violation of the Fourth and Fifth Amendments of the Federal Constitution. See United States v. Hegstrom, (2nd Cir.) 178 F.Supp. 17, 20.

The judgment of the District Court is set aside and the case remanded. On the hearing on remand, the District Court may take such evidence from either party as appears proper and make such findings as the court deems appropriate.

WILLIAM E. MILLER, Circuit Judge

(concurring in the result).

The complaint in this action was filed as a class action seeking injunctive, declaratory and general relief, because of the defendants’ alleged violation of plaintiff’s rights under the Fourth Amendment, the Eighth Amendment and the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States. Jurisdiction is predicated upon 28 U.S.C. Secs. 1331, 1343(3) and (4), and 2201 and 2202, and Title 42 U.S.C. Sec. 1983.

The specific prayer of the complaint is:

1. That a declaratory judgment be issued to the effect that:
(a) The Defendants Vogelsberg and Kirby have failed to comply with the laws of Kentucky and the requirements of the Constitution of the United States in their procedures for the arrest and custody of juveniles.
(b) The named Defendant Robert Turley is not conducting, at the present time, the Juvenile Division of the Madison County Court in accordance with the laws of the State of Kentucky and the requirements of the Constitution of the United States, in particular, the 4th Amendment, the 8th Amendment, and the due process and equal protection clauses of the 14th Amendment thereto.
(c) The Placement of Juveniles in the Madison County Jail by the Defendant Turley, and the retention of those juveniles in the Madison County Jail by the Defendant Douglas violates the laws of the State of Kentucky and the requirements of the Constitution of the United States.
(d) The Fiscal Court of Madison County has failed to provide proper detention facilities for juveniles brought before the Juvenile Division of the Madison County Court in violation of the laws of the State of Kentucky and the requirements of the Constitution of the United States.
2. Grant restraining orders, preliminary and permanent injunctions preventing Defendants, their agents, employees, successors in office and all others acting in concert with them from placing juveniles in the Madison County Jail.
3. Retain jurisdiction of this case.
4. Grant Plaintiffs such other relief as may be equitable and just to this Court.

The class of persons plaintiff seeks to represent is fully set forth in Judge McAllister’s opinion.

It is thus clear that the complaint does not challenge the right of the State of Kentucky to prosecute Duane Cox on the curfew charge, nor does it seek to nullify or enjoin the pending state court prosecution on such charge. Neither does the complaint in any manner seek a declaration that the state court proceeding against the juvenile for the alleged violation of Kentucky law is void.

If the complaint sought to enjoin the state proceeding against the juvenile, which is at least quasi-criminal in character, . it might run counter to the rulings of the Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), inasmuch as the state prosecution was pending before the Kentucky Juvenile Court at the time the present action was filed, and was not merely a threatened prosecution.

Consequently, the action is maintainable pursuant to 42 U.S.C. Sec. 1983 before the state prosecution has been completed (a) because the action is not intended as one to enjoin or disrupt the state prosecution, and (b) because the relief sought is essentially to redress the alleged violations of the constitutional rights of the plaintiff and the class he represents, arising from the procedures alleged to-be employed in Madison County, Kentucky, in connection with the arrest, detention and trial of juveniles on criminal charges.

Complaint is made chiefly with respect to three features of the procedures :

(1) That the plaintiff and juveniles similarly situated are arrested and detained for trial for an unreasonable time without receiving the benefit of a probable cause hearing.

(2) The plaintiff and juveniles in the same class are confined in adult jail facilities in Madison County, Kentucky awaiting trial for an unreasonable time under conditions causing cruel and unusual punishment in violation of the Eighth Amendment to the Federal Constitution.

(3) The plaintiff and juveniles in the same class are required to stand trial on criminal charges in said county before lay judges who are neither lawyers nor learned in the law and are thus deprived of both due process of law and the equal protection of the law. The district judge in an able opinion discussed each one of these contentions in detail and held that they were without merit. His rulings, however, were made upon a motion to dismiss the complaint without the benefit of an evidentiary hearing.

Judge McAllister’s opinion makes only passing reference to the use of non-lawyers as juvenile court judges, and I do not construe the opinion to hold that this practice is offensive to any requirement of the federal constitution. Nevertheless, it is clear that Judge Mc-Allister’s opinion, in rather sharp terms at least, adversely criticizes the practice without actually ruling that it is unconstitutional. On this point, since the opinions remands the case to the district court for appropriate findings, I construe it to mean that the issue of non-lawyer juvenile court judges is left open so that the district court on remand will be free to make an independent determination. However, I am not prepared at this time to express an opinion or to join in the implied criticism of the Kentucky practice, in effect in at least certain areas of that state and in general use to a large extent throughout the United States.

It is, of course, well settled that a juvenile, like an adult, is entitled to a probable cause hearing before being arrested and detained on a criminal charge, preferably before incarceration or at least within a reasonable time thereafter. Brown v. Fauntleroy, 143 U.S.App.D.C. 116, 442 F.2d 838 (1971); Cooley v. Stone, 134 U.S.App.D.C. 317, 414 F.2d 1213 (1969). While the facts alleged in the complaint would tend to indicate that the juvenile in this case was not accorded a probable cause hearing within a reasonable time, I am of the opinion that no definitive ruling should be made on this point until, on remand, the district court has conducted an evidentiary hearing to determine the circumstances under which the arrest was made and under which the plaintiff was held in confinement. The question of reasonableness should be determined on the basis of the individualized facts of each case. We will be in better position to evaluate the facts in regard to this aspect of the case after the district court has conducted an evidentiary hearing and made appropriate and detailed findings of fact and conclusions of law.

In my view, the opinion of Judge McAllister goes much too far in dealing with cruel and unusual punishment. The opinion may even be read to reflect an outright holding that a juvenile is subjected to cruel and unusual punishment in any case where he is confined in an adult jail facility. I do not agree with this conclusion. The exact nature and circumstances of the confinement of the juvenile in each case must be determined before a court would be in position to say that the juvenile had been subjected to cruel and unusual punishment. The mere fact of confinement in an adult jail facility, particularly in a small county jail like the one in Madison County, Kentucky, is not sufficient in and of itself to warrant a finding of cruel and unusual punishment. I do not agree that there is anything in the present record to justify the inference repetitively indicated in the opinion, that the juvenile was thrown in with the “general prison population,” if there was such a population at the time in this small county jail. We certainly are not warranted in taking judicial notice of any particular condition in the Madison County, Kentucky, jail nor to conclude without proof that the juvenile in this case was required to be exposed to adult or hardened criminals. We simply do not know the conditions of the juvenile’s confinement, and we should not express an opinion until the facts have been established. Most clearly the complaint does not depict the conditions of the youth’s actual confinement in such lurid terms as does the Court’s opinion.

If the opinion is to be taken at face value, it would hold that federal courts have the power, by construing the federal constitution, specifically the Eighth Amendment, to require states to install separate jail facilities or detention centers for juveniles throughout their entire systems. I do not believe that we have such authority or that the Eighth Amendment imposes any such requirement. The question of cruel and unusual punishment must be determined on a case by case consideration and on the basis of the actual nature and character of any given confinement. The opinion is replete with references to the horrors of confining juveniles with hardened adult offenders and criminals, even including a reference to a Reader’s Digest article of November, 1973, but the difficulty is that these general citations have no legal or authoritative value whatever and as far as we know at the present time have no relevance to any conditions which prevailed in Madison County, Kentucky, or in connection with plaintiff’s confinement.

The only specific reference in the complaint to cruel and unusual punishment is contained in paragraph #12, which reads as follows:

The Plaintiff Duane Cox is a sixteen year old child who was held in an adult jail facility. There are no medical facilities, recreational or educational facilities in the jail or evaluative programs available to the child. He was not provided physical or psychological treatment programs. Specifically, the Plaintiff Duane Cox was not provided adequate medical examinations or treatment, recreation activities or equipment, soap, towels, education, books, or reading material. In addition, no social services were provided to benefit the child or class member.

This paragraph in my view falls far short of establishing cruel and unusual punishment under the Eighth Amendment and it certainly falls far short of the exacerbated conditions of confinement painted with such a broad brush in the opinion of the Court.

As the complaint was dismissed by the district court on a motion to dismiss without an evidentiary hearing, that court had no occasion to make findings of fact as to the class action issue. On remand, this question will be open and the court should make appropriate findings to indicate whether the action is properly filed as a class action. Following his findings and conclusions, on remand, the district court should then proceed to indicate any relief to which the plaintiff is entitled individually or as the representative of a class, including any injunctive or declaratory relief, or any other form of relief under the general prayer.

Because I am persuaded that the complaint contained sufficient allegations to warrant an evidentiary hearing, I concur in the result reached in Judge Mc-Allister’s opinion.

      . Elson, “Juvenile Courts and Due Process,” 1962). The author is Chairman of the in Justice for the Child 95 (Rosenheim ed. Board of Mental Health Commissioners of Illinois.

      . Rosenheim, “Perennial Problems in the Juvenile Court,” in Id. at 1.

      . In the Harmon case, supra, Judge Brennan, speaking for the court, said: “Defendant concedes that he was lawfully committed to the Michigan reformatory at Ionia and that he escaped therefrom on June 29, 1972. Defendant contends, however, as lie did in the court below, that his departure from prison was done under duress in order to avoid threatened homosexual attacks by other inmates. Although testimony supportive of such a claim was presented in the court below, the trial judge instructed the jury that, even if they did find that defendant fled to avoid homosexual attacks, such a claim would not serve as a defense to a charge of prison escape. It is defendant’s contention that the trial judge erred reversibly in giving such an instruction. We agree. The time has come when we can no longer close our eyes to the growing problem of institutional gang rapes in our prison system.” The Court of Appeals reversed the trial court and held that the defense should have been submitted to the jury and that if they found that the escape was because of the threatened and actual gang rapes, the defendant would be exonerated from the offense of prison escape.

      . American Bar Association Journal, Vol. 46, p. 1210 (1960).

      . “Guides for Juvenile Court Judges” (New York, 1957), p. 127.


source: Caselaw Access Project

author: BEAMER, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ernest INFELICE and Mario Garelli, Defendants-Appellants.
    Nos. 73-2130, 73-2131.
    United States Court of Appeals, Seventh Circuit.
    Argued June 6, 1974.
    Decided Aug. 8, 1974.

      Julius Lucius Echeles, Sam Adam, Chicago, 111., for defendants-appellants.
    James R. Thompson, U. S. Atty., Gary L. Starkman and Jeremy D. Margolis, Asst. U. S. Attys., Chicago, 111., for plaintiff-appellee.
    Before CLARK, Associate Justice, SPRECHER, Circuit Judge, and BEAM-ER, District Judge.

       Associate Justice Tom C. Clark of the Supreme Court of the United States (Retired) is sitting by designation.

       District Judge George N. Beamer of the Northern District of Indiana is sitting by designation.

   BEAMER, District Judge.

Defendants were charged along with four other persons in a four-count indictment with violations of 21 U.S.C. §§ 841(a)(1) and 846. Count I charged Ernest Infeliee, Mario Garelli, Chester Garelli, Frank Sarris, Ernest Brown and James McGarry with conspiracy to distribute heroin and to possess heroin with intent to distribute in violation of § 841(a)(1). The remaining counts charged Infeliee, the two Garellis and Sarris with distributing 1.05 and 275.96 grams of heroin on April 14, 1972, and 293.3 grams of heroin on April 27, 1972. Appellants Infeliee and Mario Garelli were found guilty on all four counts after a court trial and each was sentenced to concurrent terms of ten years on each count, together with mandatory parole periods on the substantive counts.

On this appeal both defendants contend that (1) heroin was not a “controlled substance” during the time alleged in the indictment because the schedules of controlled substances were not updated and published in the Federal Register as required by § 812(a); (2) the court used an improper standard in evaluating the evidence by refusing to consider tapes of “Kel-set” recordings which had been admitted into evidence; (3) there was insufficient evidence as a matter of law; and (4) the denial of Infelice’s motions for polygraph testing of himself and a Government witness constituted an abuse of discretion. In addition, Garelli claims that the “Kel-set” evidence was procured in violation of Illinois law and should not have been admitted, that he was deprived of his sixth amendment right to confront witnesses with respect to the Government’s key witness, and that the court erred in allowing voice identification of him based on statements allegedly received in violation of his rights to counsel and due process of law.

The Government’s case was built upon the testimony of an informer, Robert Burks. Though the structure of defendants’ challenges to the sufficiency of the evidence differ, the arguments of both defendants hinge upon their claim that the trial court improperly credited the testimony of Burks. Infelice argues that the evidence of the Kel-set tapes destroyed Burks’ credibility while Garelli contends that the failure of Burks’ memory on cross-examination rendered his testimony unreliable.

Burks testified that he had negotiations with Brown in October of 1971 during which he asked when he could see “Crip” (identified by Burks as Mario Garelli) to purchase narcotics. Brown said that he would take Burks’ money to Crip and that Mario had said that “old friends would meet later.” After learning from Brown that Crip worked at McCormick Place, Burks found Garelli there on October 20, 1971, and Garelli acknowledged that Burks was doing business with Brown. The next day Burks told Garelli that he feared Brown would rob him, and Garelli said Burks could deal directly with him.

On October 26, 1971, Burks saw Infelice, was directed to Garelli, and showed Garelli $5,000.00. Garelli asked how much Burks expected and was told “a pound and an eighth.” Garelli said his “stuff” was good and that he was waiting for his connection. He told Burks to show Infelice the money because he “would be proud of you.” When Burks showed the money to Infelice, Infelice told him not to part with it until he had “the dope in the palm of [his] hand.”

During the week of November 7, Infelice told Burks that Garelli should have his package soon; Garelli later told Burks the same thing. Chester Garelli who was with Mario, told Burks they had given Brown a fourth of a “kilo.” On November 18, 1971, Chester told Burks that “the package” would arrive in ten days and that it would be very strong.

On January 5, 1972, Infelice told Burks that Mario and Chester had gone to New York to “cop” (which Burks explained as meaning a purchase of narcotics) and that Infelice himself had just returned from Florida where he had gone to “cop.” He agreed to have Mario call Burks upon his return. On January 12, Infelice told Burks he had given Mario the phone number; Burks went to Mario, asked if he had been to New York to “cop” and Mario said he had gone but had gotten nothing. He assured Burks that he would be the first to know when Mario was able to obtain something. Burks again saw Mario on January 28, was directed to Chester, and obtained a package which proved to be ground glass. On February 2 Burks told Infeliee that Chester had given him glass; Infeliee said he couldn't understand it and that he knew Mario wouldn’t give “bad stuff.”

Chester called Burks on April 13, told him he had a package and asked Burks to meet him at the corner of Austin and Madison Streets. Chester was with Sarris, and Sarris told Burks he would sell a quarter kilo for $10,000.00. Burks requested a sample and Sarris said he would call the next day. Sarris delivered the package the next day and told Burks he was dealing with him on the strength of Mario and Chester. The sample contained heroin. On April 15 and 27 Sarris delivered packages to Burks containing heroin in excess of 250 grams each.

On May 12, Burks complained to Infeliee about the quality of the heroin and Infeliee said, “You know that we wouldn’t do you like that, that we wouldn’t give you no bad stuff.” Infeliee said he would have Mario call Burks. On June 7, Infeliee told Burks he had told Mario to call, that someone was messing with the package and that Mario wouldn’t sell “bad stuff.” Burks then went to Chester, told him the narcotics were bad and Chester asked Burks if he would think Chester and Mario were honorable if they gave him 45 “spoons” for $3,000.00. Chester said Mario would have Sarris contact Burks and that Chester would stitch the bag to insure against tampering. Two days later Burks conversed with Sarris who said the price would be $5,000.00. No transaction was ever consummated from these final negotiations.

Though Burks was surveilled on several of these occasions, his testimony as to the conversations which occurred was in the main uncorroborated. On certain occasions when he was equipped with a “Kel-set” the machine malfunctioned; the court found the tapes to be very poor in quality, with long periods of hissing and silence.

I

Three of defendants’ claims are interrelated. The Government introduced into evidence the tape recordings of conversations between Burks and others made by use of the Kel-set radio transmitter concealed on Burks and taped by agents from a radio receiver. Defendants contend that the trial court used an improper standard in evaluating the evidence by refusing to consider these tapes where they allegedly impeached the testimony of Burks. Reliance is placed on the district judge’s statement that he “virtually disregarded them.” The court, defendants contend, effectively struck relevant evidence from the record. We do not read the court’s comments as a reflection upon the admissibility of the taped conversations, but only upon the probative weight he chose to give them. It is clear from the trial judge’s comments that he did not cavalierly disregard the evidence as defendants suggest. The court specifically mentioned inconsistencies between the tapes and Burks’ testimony and discussed those parts of Burks’ testimony which constituted added material from what appeared on the tape. The court plainly indicated that the tapes were offered as independent evidence of the conversations monitored, that at least in certain instances they contradicted the Government’s case and that, especially in light of the absence of explanation, the absence of words on the tapes constituted evidence they were not spoken. However, because of the poor quality of the tapes, with long periods of unexplained hissing and silences, and the failure of the Government to obtain Burks’ identification of the speakers, the court found the tapes of “scant value.” The trial judge viewed the case as depending upon the credibility of Burks, and the court chose to believe Burks in spite of the tapes. In context, it is clear that the judge “virtually disregarded” the tapes as evidence against defendants and considered them only for their impeachment value.

Garelli asseirts that the evidence was insufficient because of the unreliability of the tapes and because of the lack of credibility of Burks which was revealed by his inability to answer questions on cross-examination. Garelli asserts also that the “lapse of memory” by Burks on cross-examination deprived Garelli of his sixth amendment right to confront witnesses. The determination of whether a defendant’s sixth amendment right to confrontation has been violated depends upon whether defendant has been deprived of the right to test the truth of the direct testimony. United States v. Rogers, 475 F.2d 821, 827 (7th Cir. 1973). Burks’ lapse of memory here is not comparable to a refusal to answer questions as in United States v. Cardillo, 316 F.2d 606 (2nd Cir. 1963). Nor is it equivalent to a denial of the right to examine a witness as in Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). See United States v. Insana, 423 F.2d 1165, 1168 (2nd Cir. 1970), cert. denied, 400 U.S. 841, 91 S.Ct. 83, 27 L.Ed.2d 76; California v. Green, 399 U.S. 149, 188-189, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (concurring opinion of Justice Harlan). Garelli was not deprived of the right to test the knowledgeability and credibility qf Burks, and thus he was hot deprived of his sixth amendment rights.

Garelli is correct in claiming that the informer’s weak memory casts doubt upon his credibility. Burks’ lapse of memory was explained by him as caused by the confusing number of dates mentioned by Garelli’s counsel. Nevertheless, the trial judge was well aware that Burks stated with “disturbing frequency that he did not recall what was said by who, when, or where.” However, as the trial judge noted, cross-examination centered on dates in November, 1971 and 1972 when Burks had little or no contact with Garelli rather than upon the important meetings in October of 1971.

In his findings of fact, Judge Marshall concluded:

I observed Burks while he testified, twice on direct, and under extensive cross-examination. I believed him. I am persuaded beyond a reasonable doubt of the guilt of Ernest Infeliee and Mario Garelli.

It is not our function to weigh the evidence or determine the credibility of witnesses. United States v. Miles, 401 F.2d 65, 67 (7th Cir. 1968). The trial judge determined that Burks’ testimony was credible in spite of his difficulties in recollection upon cross-examination, and we see no basis for substituting our judgment for that of the trial judge who heard the evidence.

Garelli insists that witness demeanor is an insufficient basis to support the testimony of Burks, relying on Jackson v. United States, 122 U.S.App.D.C. 324, 353 F.2d 862 (1965). The court there found that the action of police officers in arresting two men and searching the wrong one first made their testimony as to the description of the suspect allegedly received from an informant “inherently incredible.” There is nothing in the testimony of Burks which is inherently improbable, and it was not, under the circumstances, too weak and incredible to accept. The trial judge here made the determination of Burks’ credibility after careful consideration of the factors militating against his credibility which are raised by defendants^ — his past background, his possible interest in the outcome, the consistency of his testimony, both internally and in relation to other evidence, and his responses on cross-examination. Accordingly, we are unable to find that the trial judge erred in crediting the testimony. See United States v. Adams, 454 F.2d 1357 (7th Cir. 1972), cert. denied, 405 U.S. 1072, 92 S.Ct. 1523, 31 L.Ed.2d 805; United States v. White, 470 F.2d 170 (7th Cir. 1972).

The existence of silence on part of the tapes was not a circumstance which was fatal to the Government’s case against Infelice or which foreclosed reliance on Burks’ testimony by the trial judge. It was the function of the trial judge to determine the probative effect of the silences on the tapes in relation to the credibility of the testimony of Burks. Questions of credibility have no bearing on the insufficiency of the evidence as a whole and are not for the reviewing court’s decision. United States v. Karigiannis, 430 F.2d 148, 151 (7th Cir. 1970), cert. denied, 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141. As the court stated in United States v. Miles, 401 F.2d 65, 67 (7th Cir. 1968):

The court as the trier of the fact, in this case, must use its experience with people and events, weighing the probabilities presented by the evidence. Thus, assuming that in reaching its decision the court has “problems” with the evidence; its judgment reflects a weighing of all the evidence. If, by its judgment, the court is convinced beyond a reasonable doubt, we can require no more.

We find no error in the trial court’s findings of guilty based on the testimony of Burks.

II

The defendants’ contention with respect to the publication of schedules of controlled substances was recently considered in United States v. Nocar, 497 F.2d 719 (7th Cir. 1974). 21 U.S.C. § 812(a) provides for republishing of schedules of controlled substances on a semiannual basis during the two-year period beginning one year after the enactment of the subchapter. In response to the claim that schedules should have been republished on October 27, 1971, one year after the enactment of Sub-chapter I of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Judge Pell, speaking for the Court in Nocar, stated:

We disagree with the defendants’ reading of section 812(a). The second sentence of the provision does not require republication on October 27, 1971. Rather, it directs that that date be used to determine when, during the following two years, the six-month demarcations are to fall. Therefore, the first republication was due on April 27, 1972, eighteen months after the enactment of the subchapter and one half year after the first anniversary.

497 F.2d at 723.

The last of the overt acts of the conspiracy and the last of the substantive offenses charged in the indictment here occurred on April 27, 1972. Therefore, the alleged violations of the law occurred before or on the day set by statute for updating and republishing the schedules, and a valid prohibition was in force.

Ill

Defendants contend the trial judge erred in denying motions for polygraph examinations of defendants and Burks, arguing that current practice and usage indicate the high scientific repute of polygraph testing. It is clear that the admission of such evidence is within the discretion of the trial judge. United States v. Chastain, 435 F.2d 686 (7th Cir. 1970). The appointment of a polygraph examiner also lies within the judge’s discretion. United States v. Penick, 496 F.2d 1105 (7th Cir. 1974). Since both the appointment of a polygraph examiner and the admission in evidence of the results are discretionary, it follows that the judge had discretion to deny the test. Appellants have cited no cases — and we have found none — that hold that the refusal to order a polygraph examination is an abuse of discretion.

IV

Garelli contends that the Kel-set transmissions and recordings constituted electronic eavesdropping and overhearing contrary to Illinois law which prohibits use of an eavesdropping device to hear or record conversations except with the consent of any one party to the conversation and at the request of a State’s attorney. Ill.Rev.Stat. Ch. 38, § 14-2(a). The question of admissibility does not turn upon whether evidence was obtained in violation of state law. Federal law governing the admissibility of evidence in federal criminal trials permits the introduction of such tape recordings. United States v. Escobedo, 430 F.2d 603, 607 (7th Cir. 1970), cert. denied, 402 U.S. 951, 91 S.Ct. 1632, 29 L.Ed.2d 122; United States v. Teller, 412 F.2d 374 (7th Cir. 1969), cert. denied, 402 U.S. 949, 91 S.Ct. 1603, 29 L. Ed.2d 118; 18 U.S.C. §§ 2511(2)(c), 2517(3).

V

Garelli’s last argument is that voice identification by Agent James deprived him of his right to counsel and due process. Agent James arrested Garelli after indictment, and Garelli responded “yes” to the question of whether he understood the constitutional rights read to him. James had earlier overheard a transmitted conversation which occurred on October 26, 1971, between Burks and another person. At trial he testified that he recognized the voice he heard on October 26 as that of Garelli on the basis of Garelli’s responses at the time of his arrest.

First, Garelli was not deprived of his right to counsel because the confrontation which occurred was not a “critical” one requiring counsel to compensate for advantages of the prosecuting authorities. The conversation on which James based his identification was preserved on tape which eliminated the risk of unintentional suggestion and impediments to confrontation at trial. “If accurate reconstruction is possible, the risks inherent in any confrontation still remain, but the opportunity to cure defects at trial causes the confrontation to cease to be ‘critical.’ ” United States v. Ash, 413 U.S. 300, 316, 93 S.Ct. 2568, 2577, 37 L.Ed.2d 619 (1973). As the Supreme Court indicated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) with respect to equivalent matters of handwriting examples and blood tests:

Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts.

388 U.S. at 227-228, 87 S.Ct. at 1933.

We therefore conclude that Garelli was not deprived of his right to counsel by the voice identification procedures followed by Agent James. Cases cited by the defendant involving the fifth amendment have no application to voice identification. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973).

Garelli also argues that the confrontation violated his right to due process under Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Since the identification by James was made with reference to a recorded conversation, the confrontation was not conducive to irreparable misidentifieation. Therefore, the identification by James did not deny Garelli due process of law. See United States v. Ryan, 478 F.2d 1008 (5th Cir. 1973).

Accordingly, the judgments of conviction will be affirmed.

Affirmed.

      . § 841(a)(1) provides:
      “(a) Except as authorized by this sub-chapter, it shall be unlawful for any person knowingly or intentionally
      (1) to manufacture, distribute or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;
      “Controlled substance” is defined in § 802 (6) as a drug or other substance, or immediate i>recursor, included in schedules established by 21 U.S.C. §§ 811-812.
      § 846 provides:
      “Any person who attempts or conspires to commit any offense defined in this sub-chapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”

      . Brown was severed from the other defendants prior to trial; Chester Garelli and Sarris entered guilty pleas during the course of the trial, and McGarry was acquitted at the close of the Government’s case,

      . Tr. at 76.

      . Tr. at 119.

      . Tr. at 160.

      . Garelli relies on the fact that Burks was “unable to recall'’ whether he had conversations with Garelli on cross-examination or the content of such conversations on January 5, 12, and 28, 1972; February 2 and 4, 1972; April 14, 1972, and May 12, 3972, and that he was unable to recall the content of a November 18, 1971 conversation with Mario Garelli. But of these dates, Burks only testified on direct examination that he had conversations witli Garelli on January 12 and 28, 1972.

      . Garelli insists that Burks’ inability to state his address and place of employ destroys his credibility. However, Burks stated he lived in the 2200 block of West Division Street and worked for a Mr. Ernest at a clothing store on South Wabash Avenue. (Tr. 198-217). Though Burks did state that be could not remember whether he had more than one unrecorded conversation with Garelli in October, he did not, as Garelli contends, state that he was unable to recall whether he had a conversation with Garelli on October 20 or what the conversation concerned. (Tr. 477-481).

      . Tr. at 25.

      . Garelli agrees with the trial judge that the corroboration of the October 26 statements of Garelli on the tapes should be given little weight apart from the testimony of Burks, but disagrees with the judge’s assessment of Burks’ credibility. In addition to the testimony of Burks, as corroborated by the tapes in part, the conversations between Burks and Brown were overheard and corroborated by Agent James.

      . Though defendant Infelice stresses the lack of corroboration of Burks’ testimony on the tapes, the October 26, 1971 tape corroborated Burks’ testimony that Infelice told him not to give up his money until he got “it” in liis hand. Infelice testified that it was his voice on the February 2, 1972, tape which responded to Burks’ complaints about powdered glass by saying he didn’t think anyone would do that; he also testified it could have been his voice on the May 12 tape discussing the possibility that Sarris had tampered with the package. In addition, though the trial judge indicated that the corroboration of Agent James of the remainder of the May 12 conversation “does tax • my credulity,” he did not indicate that lie disbelieved it. The only contradiction between the tapes and Burks’ testimony, other than implication from silence, is Burks’ testimony that be asked Infelice on January 12 whether he gave Burks’ number to Mario; the tape indicated that Infelice gave Burks the number of Garelli.

      . In pertinent part, § 812(a) provides:
      “There are established five schedules of controlled substances, to be known as schedules I, II, III, IV and V. Such schedules shall initially consist of the substances listed in this section. The schedules established by this section shall be updated and republished on a semiannual basis during the two-year period beginning one year after the date of enactment of this subchapter and shall be updated and republished on an annual basis thereafter.”

      . In addition, it is arguable that such a show-ul) is for the imrpose of arrest rather than identification and was therefore imXjerative. See Stovall, supra, at 302.


author: WALLACE, Circuit Judge: CHOY, Circuit Judge

text:
    The ROBINSWOOD COMMUNITY CLUB et al., Plaintiffs-Appellants, v. John A. VOLPE, as Secretary of the United States Department of Transportation, et al., Defendants-Appellees.
    No. 72-2251.
    United States Court of Appeals, Ninth Circuit.
    March 26, 1974.
    Rehearing Denied Dec. 23, 1974.

      John A. McGary (argued), of Seattle, Wash., Gene Duncan (argued), Bellevue, Wash., for plaintiffs-appellants.
    Jacques B. Gelin (argued), Kent Prized, Thomas L. Adams, Dept, of Justice, Washington, D. C., Thomas R. Garlington, Asst. Atty. Gen. of Wash., (argued), Olympia, Wash., Albert E. Stephan, Asst. U. S. Atty., Seattle, Wash., Robert B. Rutledge, Regional Counsel, Federal Highway Administration, Portland, Or., for defendants-appellees.

       Honorable Lawrence T. Lydick, United States District Judge, Central District of California, sitting by designation.

   OPINION

Before CHOY and WALLACE, Circuit Judges, and LYDICK, District Judge.

WALLACE, Circuit Judge:

Robinswood Community Club and a class comprised of its members (Robins-wood) appeal from the denial of a preliminary injunction to enjoin federal and state officials from completing construction of the Eastgate interchange on a segment of Interstate Highway Project 1-90 near Seattle, Washington. Robins-wood alleges noncompliance with section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2)(C), the Federal-Aid Highway Act, 23 U.S.C. § 109(b) and FHWA Policy and Procedure Memorandum (PPM) 20-8, 34 Fed.Reg. 728 (1969).

The design for the Eastgate interchange was conceived in 1962, though program and route approval by the Secretary of Transportation was not given until several years later. This controversy centers around the engineering design stage.

The State of Washington, pursuant to PPM 20-8, held numerous meetings with community groups to explain the Richards Road to Lake Sammamish segment of 1-90, of which the Eastgate interchange is an integral part. Comments and suggestions were solicited resulting in revisions to the state developed design. Several meetings were held in 1969 with representatives of the Robinswood Community Club. Based on the Club’s recommendations the design of the interchange was altered and the Club expressed its appreciation by a letter approving the revised design.

A combined corridor and highway design public hearing for the Richards Road to Lake Sammamish segment was held on July 29, 1969, in accordance with PPM 20-8 § 6(b). At the hearing, a report was submitted which dealt with 23 social, economic and environmental effects of the proposed segment. Although the subjects of noise, air and water pollution were treated in a cursory fashion in the report, affidavits in the record reveal that the ecological effects of the design were discussed at the hearing. Suggestions offered at the design hearing were incorporated into the final design which was submitted to and approved by the Secretary of Transportation on December 11, 1969.

In 1970, after final design approval by the federal government and absent any objection, the Washington State Department of Highways proceeded with detailed design, acquisition of right of way and preparation of contract plan documents.

Robinswood first sought injunctive relief supported by a single affidavit alleging irreparable harm on April 13, 1971. The motion was denied on August 27, 1971. Eight months later, during which the State of Washington let some $10,000,000 in construction contracts, Robinswood again sought a preliminary injunction, which was denied on April 21, 1972. The district judge concluded that since final design approval by the federal government had been given prior to the effective date of NEPA, an impact statement was not required. This appeal followed. We affirm.

To obtain a preliminary injunction Robinswood must satisfy at least two requirements: First, it must demonstrate a strong likelihood or reasonable certainty that it will prevail on the merits; second, it must show it will suffer irreparable injury if the injunction is not granted. Sierra Club v. Hickel, 433 F.2d 24, 33 (9th Cir. 1970), aff’d on other grounds, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The granting or denial of a motion for preliminary injunction rests within the sound discretion of the trial court. County of Santa Barbara v. Hickel, 426 F.2d 164, 168 (9th Cir. 1970). Accordingly, we must decide whether the district judge abused his discretion.

I. The National Environmental Policy Act of 1969

Section 102(2)(C) of NEPA requires an impact statement for major federal actions significantly affecting the quality of the human environment. Complications arise when a project such as we are concerned with here, straddles the effective date of NEPA, January 1, 1970.

The Council on Environmental Quality (CEQ), the watchdog organization created by NEPA, issued guidelines requiring all federal agencies to direct their efforts at meeting national environmental goals. Each agency was ordered to comply with section 102(2)(C) to the fullest extent possible. Specific reference was made to existing projects or programs:

11. Application of section 102(2)(C) procedure to existing projects and programs. To the maximum extent practicable the section 102(2) (C) procedure should be applied to further major Federal actions having a significant effect on the environment even though they arise from projects or programs initiated prior to enactment of the Act on January 1, 1970. Where it is not practicable to reassess the basic course of action, it is still important that further incremental major actions be shaped so as to minimize adverse environmental consequences. It is also important in further action that account be taken of environmental consequences not fully evaluated at the outset of the project or program.

36 Fed.Reg. 7727 (1971).

Each agency was entrusted with the responsiblity of developing its own formal procedures to identify instances where environmental impact statements were required. The procedures were to be consonant with the Council’s guidelines. Pursuant to this mandate, the Department of Transportation issued PPM 90-1 on August 24, 1971. Section 5b of the Memorandum, designating when a section 102(2)(C) statement shall be prepared for a highway segment, provides:

An environmental statement . . . shall be prepared and processed in accordance with this memorandum for each highway section which received design approval on or after January 1, 1970, and before February 1, 1971, and which constitutes a major action significantly affecting the environment ... if, in the judgment of the FHWA division engineer, implementation of the National Environmental Policy Act to the fullest extent possible requires preparation and processing of an environmental statement. In making his judgment the FHWA division engineer should consider, in addition to the written reassessment prepared by the HA . . . for each such highway section, the status of the design; right-of-way acquisition including demolition of improvements within the right-of-way; number of families already rehoused and those yet to be rehoused; construction scheduling; benefits to accrue from the proposed highway improvement; significant impacts; and measures to minimize any adverse impacts of the highway.

The district court ruled that PPM 90-1 § 5b did not require compliance with section 102(2)(C) because the Secretary of Transportation had given final design approval prior to the effective date of NEPA. The issue presented is whether the date of final design approval is the controlling criterion for determining the applicability of NEPA to ongoing highway projects.

Federal courts have frequently grappled with the question of the retrospective application of NEPA. Some courts have adopted the date of final design approval by the Secretary of Transportation as the peg date for the application of NEPA. Concerned Citizens of Marlboro v. Volpe, 459 F.2d 332, 335 (3d Cir. 1972); see Pennsylvania Environmental Council, Inc. v. Bartlett, 454 F.2d 613, 624 (3d Cir. 1971) (Secretary’s final approval). Other courts have focused on the degree of completeness of a federal highway project and denied retrospective application of section 102(2)(C) to projects where federal participation was virtually complete. Ragland v. Mueller, 460 F.2d 1196 (5th Cir. 1972). Still other courts have determined the application of section 102(2)(C) not solely on the basis of the date of final approval, but also on the basis of a number of factors including, among others, CEQ guidelines, extent of construction on the project, extent of public participation in the planning stages and likelihood of harm to the environment. E. g., Northside Tenants’ Rights Coalition v. Volpe, 346 F.Supp. 244 (E.D.Wis.1972); Indian Lookout Alliance v. Volpe, 345 F.Supp. 1167 (S.D.Iowa 1972), modified, 484 F.2d 11 (8th Cir. 1973); Conservation Society v. Volpe, 343 F.Supp. 761 (D.Vt.1972); Environmental Law Fund v. Volpe, 340 F.Supp. 1328 (N.D.Cal. 1972).

Although not faced with the issue in a case involving a highway project, we have already spoken on the general issue involved here in determining at what stage of development we can say a project is pre-NEPA. In San Francisco Tomorrow v. Romney, 472 F.2d 1021 (9th Cir. 1973), we analyzed the applicability of the Act in two urban renewal programs, both of which commenced prior to January 1, 1970. We held that section 102(2)(C) required that an environmental impact statement be filed in one case, but not in the other. The deciding factor was not whether buildings would be built or earth moved after the beginning date of the Act, but whether there were any further stages requiring major action by the government. That the government would later monitor the project was not a “major Federal action” pursuant to section 102(2)(C).

The same theory has application here. Once the engineering design stage is finalized, the plan, the implementation of which results in an impact on the environment, has been completed. Each house that is moved, each mound of dirt that is excavated, each ribbon of concrete that is laid has an impact on the environment, but that impact is determined by the plan already adopted. Of course, the government will have substantial participation in the project subsequent to January 1, 1970. But mere participation is not enough. The real question is whether the government’s continued participation constitutes "further major Federal actions having a significant effect on the environment . . . 36 Fed.Reg. 7727 (1971) (emphasis added). After final design approval, nothing further occurs which (1) is major and (2) has a significant effect on the environment other than what is contemplated by the approved design. This analysis is completely consistent with our holding in San Francisco Tomorrow; indeed, a contrary holding would contravene its basic thrust.

We, therefore concur with the Secretary’s apparent interpretation that NEPA becomes applicable only when the final design approval occurs after January 1, 1970. PPM 90-1 § 5b. We hold that NEPA is not applicable when final design approval occurred prior to that date and the subsequent participation does no more than carry out the approved design.

Admittedly, the cutoff line could be drawn anywhere. Every major federal action has at least a conception and an execution; every execution may adversely affect the environment. But governments, just as ordinary citizens, have a need for definiteness in the conduct of their affairs. In this sense, we view the applicability of NEPA to a project begun prior to its effective date as similar to that of a statute of limitations. Some rights will be saved but others will be lost when we apply an arbitrary standard to an ongoing series of events. Nevertheless, the standard must be applied and we believe that the point of final approval is the logical place. This makes a definitive point which can be appropriately called “major Federal action.”

II. The Federal-Aid Highway Act

Robinswood contends that 23 U.S.C. § 109(b) was not complied with because the geometric and construction standards for the Eastgate interchange were not adequate to meet anticipated traffic projections for the twenty-year period commencing on the date of federal approval. Robinswood produced an engineering study which purported to show that current traffic flow is at the projected 1990 level. Based on the record before us we cannot agree. The State of Washington made a traffic study which indicated compliance with the mandates of section 109(b). We are aware that such projections are rarely entirely accurate and that data can be contorted to produce a desired statistic. Nonetheless, the state traffic study was clearly admissible into evidence and we cannot say on the record before us that the trial judge could not rely on that report. His findings in regard to the report are not clearly erroneous.

III. FHWA Policy and Procedure Memorandum 20-8

Robinswood alleges that because of certain deficiencies in the combined corridor and highway design hearing on July 29, 1969, a new design hearing is required. The deficiencies allegedly involved the failure to consider 23 social, economic and environmental factors in approving the location of the Eastgate interchange. We disagree. The record reveals that not only was a report prepared by the State of Washington concerning the 23 factors but also the factors were discussed at the design hearing. This was sufficient for compliance with PPM 20-8.

Robinswood neither demonstrated a strong likelihood that it would prevail on the merits nor irreparable injury. Therefore, the district judge did not abuse his discreton in denying the injunction.

■Affirmed.

CHOY, Circuit Judge

(concurring):

I concur with my Brothers Wallace and Lydick in all of the foregoing majority opinion save that portion of it fixing the date of final design approval by the Secretary of Transportation as the controlling criterion for determining the applicability of NEPA to ongoing highway projects. Withal, I concur in the result reached by them affirming the judgment of the district court.

It strikes me as too mechanical, as well as wrong, to peg the date of final design approval for the purpose of applying NEPA to a highway project such as is involved here. I prefer the approach adopted in a number of recent decisions which determine the application of § 102(2)(C) of NEPA, 42 U.S.C. § 4332, not solely on the basis of the date of final design approval, but according to Council on Environmental Quality (CEQ) guidelines. Northside Tenants’ Rights Coalition v. Volpe, 346 F.Supp. 244 (E.D.Wis.1972); Indian Lookout Alliance v. Volpe, 345 F.Supp. 1167 (S.D.Iowa 1972); Southern Vermont, Inc. v. Volpe, 343 F.Supp. 761 (DVt.1972); Environmental Law Fund v. Volpe, 340 F.Supp. 1328 (N.D.Cal. 1972); Morningside-Lenox Park Association v. Volpe, 334 F.Supp. 132 (N.D. Ga.1971).

As related in the majority opinion, CEQ, the watchdog created by NEPA, issued guidelines requiring all federal agencies to comply with. section 102(2)(C) to the máximum extent practicable, 36 Fed.Reg. 7727 (1971); and pursuant to a CEQ mandate that each agency develop its own formal procedures delineating when environmental impact statements were required, the Department of Transportation issued PPM 90-1 on August 24, 1971.

The guidelines require two distinct evaluations prior to the application of § 102(2)(C) to a federal highway project initiated prior to January 1, 1970. First, there must be further major federal action having a significant effect on the environment occurring after January 1, 1970. Second, preparation of an environmental impact statement must be practicable.

Federal participation in a highway project is not terminated when final design approval is given by the Secretary of Transportation. Design approval merely marks the completion of the third stage of a project. Title 23 specifies numerous additional steps which must be taken by the federal government. States often request that the Secretary of Transportation aid in the acquisition of rights-of-way. The Secretary must enter into a formal project agreement with the state concerning construction and maintenance. This agreement must include clauses as to use of and access to rights-of-way. The federal government plays an important role in regulating letting of contracts for a federally financed highway. Actual construction cannot begin without final inspection and approval nor is a state entitled to payment without the approval of the Secretary. Federal participation permeates virtually every aspect of a highway project. The Secretary does not merely monitor a highway project to assure compliance with statutory and contractual requirements but supervises contracting, construction, maintenance, and, in numerous instances, directly acquires rights-of-way. In the case before us, major federal action having a significant effect on the environment, in the form of the above statutorily prescribed steps, did occur after January 1, 1970.

Assuming that the first requirement of the CEQ guidelines is satisfied, we should consider whether it would be practicable to halt the construction of the highway segment involved while an impact statement is being prepared. We should examine the four factors suggested in Environmental Fund v. Volpe, supra at 1334-1335 of 340 F.Supp.: (1) the participation of the local community in the planning of a project; (2) the extent to which the state agency involved has attempted to take environmental factors into account in regard to a particular project; (3) the likely harm to the environment if the project is constructed as planned; and (4) the cost to the state of halting construction while it compiles an environmental impact statement.

The record reveals that the local community did participate extensively in the planning of the Richards Road to Lake Sammamish segment of 1-90. Robins-wood itself was consulted on at least three occasions and made a suggestion which was later adopted. The state did take environmental factors into consideration and prepared a report concerning social, economic and environmental factors as required by PPM 20-8, 23 C.F.R. Appendix A (1969). Though the report alone was not sufficient, these very issues were discussed at the combined corridor and highway design public hearing. The burden was on the appellants to establish the harm to the environment and this burden was not sustained by merely offering unsubstantiated allegations of potential damage. Finally, the State of Washington produced affidavits which estimated the potential loss because of inflation and breach of contract at $700,000 plus. An environmental statement is not practicable.

I would hold that under the CEQ guidelines an environmental statement is not required.

Contrary to the belief of the majority that deviating from the date of final design approval as the peg date would contravene our holding in San Francisco Tomorrow v. Romney, 472 F.2d 1021 (9th Cir. 1973), I discern no inconsistency in my position here and that holding. In San Francisco Tomorrow, we found that “[w]hen the National Environmental Policy Act became effective on January 1, 1970, the federal involvement in the Yerba Buena Project was virtually complete. In fact, for purposes of NEPA, major federal action had terminated on December 2, 1966 when HUD became contractually obligated to the San Francisco Redevelopment Agency for the loan and grants.” And we held that monitoring the municipality’s execution of the project to assure HUD that the undertakings of the December 2, 1966 contract were fulfilled involved no further major federal action. 470 F.2d at 1025. We were careful to distinguish decisional law in highway cases as misplaced when applied on this issue in urban renewal cases, pointing out other stages besides the design phase at which the NEPA impact statement should be filed, id.

Here, as I point out above, there were some four major federal actions following the date of design approval of this ongoing highway project. I would affirm the district court’s holding that an impact statement was not required, but for the reasons stated above, not because final design approval had been given prior to the effective date of NEPA.

      . This circuit recently, examined the five stages in the construction of a federally financed highway in Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971). The stages are: ixrogram, routing, engineering design, right-of-way acquisition and actual construction.

      . 23 U.S.C. § 109(b) provides in pertinent part:
      The geometric and construction standards to be adopted for the Interstate System shall be those approved by the Secretary in cooperation with the State highway departments. Such standards, as applied to each actual construction project, shall be adequate to enable such project to accommodate the types and volumes-of traffic anticipated for such project for the twenty-year period commencing on the date of approval by the Secretary, under section 106 of this title, of the plans, specifications, and estimates for actual construction of such project. Such standards shall in all eases provide for at least four lanes of traffic. The right-of-way width of the. Interstate System shall be adequate to permit construction of projects on the Interstate System to such standards. The Secretary shall apply such standards uniformly throughout all the States.

      . See majority opinion, n. 1.

      . 23 U.S.C. § 107 provides in pertinent part as follows:
      § 107. Acquisition, of rights-of-way — Interstate System

      (a) In any ease in which the Secretary is requested by a State to acquire lands or interests in lands (including within the term “interests in lands”, the control of access, thereto from adjoining lands) required by such State for right-of-way or other purposes in connection with the prosecution of any project for the construction, reconstruction, or improvement of any section of the Interstate System, the Secretary is authorized, in the name of the United States and prior to the approval of title by the Attorney General, to acquire, enter upon, and take possession of such lands or interests in lands by purchase, donation, condemnation, or otherwise in accordance with the laws of the United States (including the Act of February 26, 1931, 46 Stat. 1421), if—
      (1) the Secretary has determined either that the State is unable to acquire necessary lands or interests in lands, or is unable to acquire such lands or interests in lands with sufficient promptness ; and
      (2) the State has agreed with the Secretary to pay, at such time as may be specified by the Secretary an amount equal to 10 per centum of the costs incurred by the Secretary, in acquiring such lands or interests in lands, or such lesser percentage which represents the State’s pro rata share of project costs as determined in accordance with subsection (c) of section 120 of this title.

      . 23 U.S.C. § 110 provides as follows:
      § 110. Project agreements

      (a) As soon as practicable after the plans, specifications, and estimates for a specific project have been approved, the Secretary shall enter into a formal project agreement with the State highway dejjartment concerning the construction and maintenance of such project. Such project agreement shall make provision for State funds required for the State’s pro rata share of the cost of construction of such project and for the maintenance thereof after completion of construction.
      (b) The Secretary may rely upon representations made by the State highway department with respect to the arrangements or agreements made by the State highway department and appropriate local officials where a part of the project is to be constructed at the expense of, or in cooperation with, local subdivisions of the State. Pub.L. 85-767, Aug. 27, 1958, 72 Stat. 894.

      . 23 U.S.C. § 111 provides as follows :
      § 111. Agreements relating to use of and access to rights-of-way — Interstate System

      All agreements between the Secretary and the State highway department for the construction of projects on the Interstate System shall contain a clause providing that the State will not add any points of access to, or exit from, the project in addition to those approved by the Secretary in the plans for such project, without the prior approval of the Secretary. Such agreements shall also contain a clause providing that the State will not permit automotive service stations or other commercial establishments for serving motor vehicle users to be constructed or located on tlie riglits-of-way of the Interstate System. Such agreements may, however, authorize a State or political subdivision thereof to use or permit the use of the airspace above and below the established grade line of the highway pavement for such purposes as will not impair the full use and safety of the highway, as will not require or permit vehicular access to such space directly from such established grade line of the highway, or otherwise interfere in any way with the free flow of traffic on the Interstate System. Pub.L. 85-767, Aug. 27, 1958, 72 Stat. 895; Pub.L. 87-61, Title I, § 104(a), June 29, 1961, 75 Stat. 122.

      . 23 U.S.C. § 112 provides as follows:
      § 112. Lettint/ of contracts

      (a) In all cases where the construction is to be performed by the State highway department or under its supervision, a request for submission of bids shall be made by advertisement, unless some other method is approved by the Secretary. The Secretary shall require such plans and specifications and such methods of bidding as shall be effective in securing competition.
      (b) Construction of each project, subject to the provisions of subsection (a) of this section, shall be performed by contract awarded by competitive bidding, unless the Secretary shall affirmatively find that, under the circumstances relating to such project, some other method is in the public interest. All such findings shall be reported promptly in writing to the Committees on Public Works of the Senate and the House of Representatives. Contracts for the construction of each project shall be awarded only on the basis of the lowest responsive bid submitted by a bidder meeting established criteria of responsibility. No requirement or obligation shall be imposed as a condition precedent to the award of a contract to such bidder for a project, or to the Secretary’s concurrence in the award of a contract to such bidder, unless such requirement or obligation is otherwise lawful and is specifically set forth in the advertised specifications.
      (c) The Secretary shall require as a condition precedent to his approval of each contract awarded by competitive bidding pursuant to subsection (b) of this section, and subject to the provisions of this section, a sworn statement, executed by, or on behalf of, the person, firm, association, or corporation to whom such contract is to be awarded, certifying that such person, firm, association, or corporation has not, either directly or indirectly, entered into any agreement, participated in any collusion, or other-wise taken any action in restraint of free competitive bidding in connection with such contract.
      (d) No contract awarded by competitive bidding pursuant to subsection (b) of this section, and subject to the provisions of this section, shall be entered into by any State highway department or local subdivision of the State without compliance with the provisions of this section, and without the prior concurrence of the Secretary in the award thereof.
      (e) The provisions of this section shall not be applicable to contracts for projects on the Federal-aid secondary system in those States where the Secretary has discharged his responsibility pursuant to section 117 of this title. Pub.L. 85-767, Aug. 27, 1958, 72 Stat. 895.

      . 23 U.S.C. § 114 provides in pertinent part as follows:
      § 114. Construction

      (a) The construction of any highways or portions of highways located on a Federal-aid system shall be undertaken by the respective State highway departments or under their direct supervision. Except as provided in section 117 of this title, such construction shall be subject to the inspection and approval of the Secretary. The construction work and labor in each State shall be performed under the direct supervision of the State highway department and in accordance with the laws of that State and applicable Federal laws. Construction may be begun as soon as funds are available for expenditure pursuant to subsection (a) of section 118 of this title. On any project where actual construction is in progress and visible to highway users, the State highway department shall erect such informational sign or signs as prescribed by the Secretary,'identifying the project and the respective amounts contributed therefor by the State and Federal Governments.

      . 23 U.S.C. § 121 provides in pertinent part as follows:
      § 121. Payment to States for construction

      (a) The Secretary may, in his discretion, from time to time as the work progresses, make payments to a State for costs of construction incurred by it on a project. These payments shall at no time' exceed the Federal share of the costs of construction incurred to the date of the voucher covering such payment plus the Federal share of the value of the materials which have been stockpiled in the vicinity of such construction in conformity to plans and specifications for the project.
      (b) After completion of a project in accordance with the plans and specifications, and approval of the final voucher by the Secretary, a State shall be entitled to payment out of the appropriate sums apportioned to it of the unpaid balance of the Federal share payable on account of such project.
      (c) No payment shall be made under this chapter, except for a project located on a Federal-aid system and covered by a project agreement. No final payment shall be made to a State for its costs of construction of a project until the completion of the construction has been approved by the Secretary following inspections pursuant to section 114 (a) of this title.