text:
    Ernest W. WALL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-1194.
    United States Court of Appeals, Tenth Circuit.
    July 22, 1974.
    Certiorari Denied Nov. 18, 1974.
    See 95 S.Ct. 504.
    Before PICKETT, Senior Circuit Judge, and SETH and McWILLIAMS, Circuit Judges.
   PER CURIAM.

Appellant, while serving a state sentence, pleaded guilty to three counts of a federal indictment. Subsequently, he was sentenced to three years on each count, to run consecutively both to each other and to any other sentence then being served or which had been previously imposed.

In his motion to vacate the federal sentences pursuant to 28 U.S.C. § 2255, Wall contends that the pleas were involuntary for two reasons: 1) he was led by counsel to believe that the federal sentences would run concurrently with each other and with the existing state sentence; and 2) the trial court should have advised him of the possibility of consecutive rather than concurrent sentences.

The first claim is frivolous. Prior to the entry of the guilty pleas, appellant, in open court, completed an instrument denominated as a “petition to enter pleas of guilty”. There, appellant acknowledged that he had been advised that the maximum penalty which could be imposed upon conviction was fifteen years imprisonment, a fine of $30,000, or both. Further, he stated that he had received no promises, suggestions or predictions of leniency in return for the pleas. These facts render the claim completely untenable. Robinson v. United States, 474 F.2d 1085 (10th Cir. 1973).

Under Rule 11 of the Federal Rules of Criminal Procedure, the trial court may not accept a guilty plea without first determining that the plea is voluntarily made with an understanding of its consequences. However, the trial court is not required to advise an accused of every collateral consequence of his plea. Hutchison v. United States, 450 F.2d 930 (10th Cir. 1971). Here, Wall was made fully aware of the direct consequences of his plea by the trial court. The consecutive federal sentences actually imposed were well within the stated maximum. Under these circumstances, we find it difficult to perceive how the failure of the trial court to advise of the possibility of consecutive federal sentences could possibly deprivé appellant’s guilty pleas of their voluntary character. Anderson v. United States, 302 F.Supp. 387 (W.D.Okl.1969) affm’d on other grounds 405 F.2d 492 (10th Cir. 1969), cert. denied 394 U.S. 965, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969); Johnson v. United States, 460 F.2d 1203 (9th Cir. 1972); United States v. Vermeulen, 436 F.2d 72 (2nd Cir. 1970), cert. denied 402 U.S. 911, 91 S.Ct. 1390, 28 L.Ed.2d 653 (1971).

Appellant asks us to expand the effect of Rule 11 to require that a defendant be advised by the trial court of all possible ancillary or consequential results of his plea which are particular to him. This we decline to do. In our view, the fact that service of the federal sentences would follow the previously imposed state sentence was not a definite “practical consequence of the plea” within the meaning of Rule 11. Hutchison v. United States, supra; Tindall v. United States, 469 F.2d 92 (5th Cir. 1972). Compare Jenkins v. United States, 420 F.2d 433 (10th Cir. 1970). Appellant’s pleas were counselled and he was carefully advised of their consequences. We believe that the requirements of Rule 11 were satisfied.

Upon docketing in this court, the parties were notified we were considering summary affirmance. Thereafter, appellant submitted a memorandum addressing the merits and opposing summary action. Nevertheless, a careful and thorough review of the files and records in this case convinces us that the district court correctly denied relief. Accordingly, the judgment of the district court is affirmed.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. William Henry KENNEY, Jr., Appellant.
    No. 73-2147.
    United States Court of Appeals, Fourth Circuit.
    Submitted May 29, 1974.
    Decided July 16, 1974.

      Brian P. Gettings, U. S. Atty., and K. Gregory Haynes, Asst. U. S. Atty., on brief for appellee.
    Jerome A. Lowe, Arlington, Va., on brief for appellant.
    Before CRAVEN, BUTZNER and RUSSELL, Circuit Judges.
   PER CURIAM:

William Henry Kenney, Jr. appeals from the judgment entered upon his conviction for distributing heroin in violation of 21 U.S.C. § 841(a)(1).

Kenney contends that he was denied a fair trial by (1) the government’s failure to call as a witness an informer who was present at the narcotics transaction and the district court’s refusal to give a missing witness instruction, and (2) certain comments and instructions made by the court.

John E. Price, an undercover agent with the Bureau of Narcotics and Dangerous Drugs, testified that he purchased nine packets of heroin from Norman Richardson, Kenney’s codefendant, on January 18, 1973. Price testified that he saw Kenney hand Richardson a pink tissue or napkin from which Richardson took the tinfoil packages that he sold Price. During the transaction an informant named Charles Ward was talking to Kenney.

Kenney admitted being with Richardson on the day in question and remembered talking with Ward while Richardson spoke with another man inside a car, but he denied giving any drugs to Richardson. Instead he testified that he gave Richardson only a dollar and a cigarette.

Kenney argues that the government should have called Charles Ward as a witness because he could have resolved the conflict between Price’s allegation and Kenney’s denial.

Kenney’s reliance on Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), is misplaced. In that case the government withheld from the defense the identity of a government informant. Here Kenney knew the name of the informant and the neighborhood where he resided. The record does not support the assertion that the government kept Ward hidden from the defense prior to trial, and defense counsel filed no motions seeking to have Ward made available for a pretrial interview.

Because Kenney has failed to show that Ward was not as available to the defense as he was to the prosecution, the government was not required to produce Ward at trial and Kenney was not entitled to a missing witness instruction. United States v. Chase, 372 F.2d 453 (4th Cir.), cert. denied, 387 U.S. 907, 87 S.Ct. 1688, 18 L.Ed.2d 626 (1967); accord, United States v. Higginbotham, 451 F.2d 1283, 1286 (8th Cir. 1971).

Kenney’s second claim is also without merit. We find no error in any of the challenged comments and instructions. The court accurately observed that the jury’s verdict would turn on a credibility determination, and the entrapment instruction was correct under United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973).

Affirmed.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William John Allen BOWEN, Defendant-Appellant.
    No. 74-1205.
    United States Court of Appeals, Sixth Circuit.
    Submitted June 11, 1974.
    Decided July 16, 1974.
    Certiorari Denied Nov. 11, 1974.
    See 95 S.Ct. 322.
    John Tim McCall, Louisville, Ky. (Court-appointed), on brief, for defendant-appellant.
    George J. Long, U. S. Atty., Mark Stephen Pitt, Asst. U. S. Atty., Louisville, Ky., on brief, for plaintiff-appellee.
    Before PHILLIPS, Chief Judge, McCREE Circuit Judge, and RUBIN , District Judge.

       The Honorable Carl B. Bubin, Judge, U. S. District Court for the Southern District of Ohio, sitting by designation.

   PER CURIAM.

This is an appeal from a conviction in a jury trial of a fifty-six year old man who received a nine-year sentence for causing to be transported in interstate commerce three falsely made and forged checks, in violation of 18 U.S.C. § 2314.

On appeal, it is contended, first, that the trial court committed reversible error by permitting the prosecution to impeach appellant on cross-examination by asking him if he had ever been convicted of a felony. However, after appellant responded “yes” to this question, the district court instructed the jury, specifically, that the question “has nothing to do with the substantive offense alleged in this charge, and you may not consider it for any purpose other than the question of [appellant’s] credibility.” This introduction of evidence of prior felony convictions for the limited purpose of impeaching a criminal defendant who voluntarily has taken the witness stand is consistent with the traditional rule of law recognized in this country. See, e. g., McGautha v. United States, 402 U.S. 183, 213-217, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971); Spencer v. Texas, 385 U.S. 554, 561, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); United States v. Palumbo, 401 F.2d 270 (2d Cir. 1968), cert. denied, 394 U.S. 947, 89 S.Ct. 1281, 22 L.Ed.2d 480 (1969); United States v. Remco, 388 F.2d 783 (3d Cir. 1968); Singleton v. United States, 381 F.2d 1 (9th Cir. 1967); United States v. Eggebrecht, 486 F.2d 136 (8th Cir. 1973). We are not persuaded by appellant’s contentions that a different rule is constitutionally mandated on grounds that this procedure violated appellant’s constitutional rights against self-incrimination, to a trial by an impartial jury, and to equal protection and due process of law. And we decline at this time to reconsider the traditional rule as a matter of our supervisory power over criminal trials in this circuit.

Appellant also contends that the district court erred in not declaring a mistrial when the prosecutor, in closing argument to the jury, said that the eyewitness identification of appellant “was good enough when the case was presented to the grand jury to enable the grand jury to return an indictment.” This comment was without doubt improper. It is another example of prosecutorial “overkill”, see e. g., United States v. Calvert, 498 F.2d 409 (6th Cir. 1974), such as might require reversal in a case where the proofs were not so overwhelming or where the prosecutor made the prejudicial statement knowing it to be improper. In such a case, a verdict of guilty might have to be overturned despite commendable efforts of a trial judge to correct with a cautionary instruction the prosecution’s error for which the court was not responsible. Here, however, the record contains overwhelming evidence of appellant’s guilt, there is no suggestion that the prosecutor acted in bad faith to prejudice appellant, and the trial court instructed the jury to disregard the comment. Accordingly, we conclude that the error was harmless.

Affirmed.


author: PICKETT, Circuit Judge.

text:
    Charles Thomas WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1452.
    United States Court of Appeals, Tenth Circuit.
    Argued May 13, 1974.
    Decided July 22, 1974.

      E. Roger Horsky, Leavenworth, Kan., for appellant.
    Benjamin L. Burgess, Jr., Asst. U. S. Atty., D. Kansas (Robert J. Roth, U. S. Atty., and Bruce E. Miller, Asst. U. S. Atty., D. Kansas, on the brief), for ap-pellee.
    Before PICKETT, HILL and DOYLE, Circuit Judges.
   PICKETT, Circuit Judge.

On November 5, 1969, appellant Williams was charged by Information in the United States District Court for the District of Kansas with aiding and abetting in a theft from an interstate shipment in violation of 18 U.S.C. § 659. Upon arraignment, Williams entered a plea of not guilty and was released on bond. Thereafter, Williams was arrested by Missouri state authorities and imprisoned for a state offense. While so confined he appeared in federal court with his counsel and requested permission to withdraw his plea of not guilty and to enter a plea of guilty. In support of this request, counsel for Williams asked permission to make a record by questioning Williams in open court. This request was granted and counsel proceeded with a detailed examination of Williams relating to his understanding of the federal charge against him. It was disclosed that Williams fully understood the nature of the charge and the consequences of a guilty plea. He recited the statutory penalty for the offense charged. He also gave detailed information as to the voluntariness of his plea, which included references to his right to trial by jury and other constitutional, rights which are waived by a plea of guilty. He explained his participation in the theft. It was shown that Williams was a narcotics addict and was receiving treatment, but that such treatment caused him no mental problems and that he was fully aware of the proceedings in which he was participating.

Following Williams’ showing on his own behalf, the court addressed him personally with regard to his understanding of the nature of the charge against him and the factual basis for a plea of guilty. The court then stated that “[r]elying on your answers to the questions put to you by Mr. Simon [Williams’ attorney] and myself, the plea of not guilty heretofore entered will be set aside . . .,” whereupon the court accepted the plea of guilty and Williams was later sentenced to the custody of the Attorney General for imprisonment for a period of five years. It is now contended that in accepting the plea of guilty the court did not comply with the requirements of Rule 11 of the Federal Rules of Criminal Procedure, and further, that Williams, a drug addict, was incompetent to enter a plea of guilty because of methadone treatment for the addiction.

Before accepting a plea of guilty in a criminal case, the court is required by Rule 11 to address the defendant personally in determining that the plea is made voluntarily and with an understanding of the nature of the charge and consequences of the plea. The law is now settled that these requirements msut be strictly complied with. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); United States v. Thomas, 468 F.2d 422 (10th Cir. 1972), cert. denied, 410 U.S. 935, 93 S.Ct. 1389, 35 L.Ed.2d 599 (1973); United States v. Sanders, 435 F.2d 1282 (10th Cir. 1970). The court’s questioning was adequate to show that Williams understood the nature of the charge against him and that there was a factual basis for the plea. The record discloses with remarkable clarity that Williams, by his own unsolicited statements, entered his plea of guilty voluntarily and with full knowledge of the consequences. In addressing the defendant personally, the court elicited from him that he understood the nature of the charge and his participation in the alleged crime. The effect of the court’s statement to the defendant was that in addition to the information developed by the court, Williams’ voluntary statements made through his own attorney would be adopted in determining that the plea was made voluntarily and with understanding of the nature of the charge and the consequences of a guilty plea. Under these circumstances, we are of the view that the requirements of Rule 11 have been satisfied. Although we do not condone a failure to personally obtain from the defendant his knowledge of the consequences of a guilty plea, to require more than this record shows would place ritual above reality. A more meticulous adherence to the rule would not have added anything to the record which would have been of assistance to the court in determining that the plea was truly voluntary, nor would it have been of any assistance in disposing of the present post conviction proceedings.

There is no merit to the contention that becaue of methadone treatment for drug addiction Williams was incapable of making an intelligent waiver of his constitutional rights and of entering a plea of guilty. The evidence and the court’s finding are to the contrary.

It is contended that the provisions of Rule 11 obligating the court to address the defendant personally to make certain that he understands the consequences of a guilty plea require that under the circumstances Williams should have been told that his sentence would not run concurrently with a state sentence and would commence from the date he arrived at the institution where the federal sentence was to be served. (18 U.S.C. § 3568) The contention finds support in United States v. Myers, 451 F.2d 402 (9th Cir. 1972). We prefer the reasoning of Judge Daugherty in Anderson v. United States, 302 F.Supp. 387 (W.D.Okl.1969), aff’d, 405 F.2d 492 (10th Cir. 1969); where it was held to the contrary. Subsequent to the Myers case, the Ninth Circuit held that Rule 11 did not require the sentencing court to advise a defendant that prison terms on separate counts might run consecutively. In Johnson v. United States, 460 F.2d 1203 (9th Cir. 1972), the court stated: “The consequences of a plea are so numerous that a trial judge would have difficulty in enumerating all of them.” See also Hutchison v. United States, 450 F.2d 930 (10th Cir. 1971).

Affirmed.

      . Williams does not contend that his plea was involuntary or that he was not fully aware of the sentence which the court might impose. His sole complaint is that the judge did not personally advise him as required by Rule 11.


text:
    HERBERT J. INVESTMENT CORPORATION, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
    No. 73-1832.
    United States Court of Appeals, Seventh Circuit.
    Argued April 22, 1974.
    Decided July 19, 1974.

      David J. Cannon, U. S. Atty., Milwaukee, Wis., Scott P. Crampton, Asst. Atty. Gen., William S. Estabrook, III, Atty., Tax Div., Dept, of Justice, Washington, D. C., For defendant-appellant.
    James P. Brody, Milwaukee, Wis., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and SPRECHER, Circuit Judge.
   PER CURIAM.

Taxpayer Herbert J. Investment Corporation brought this action against the United States to recover an income tax refund for the year 1968 in the amount of $402,360.02, plus interest. The distict court granted taxpayer’s motion for summary judgment for reasons stated in an earlier decision and order, 360 F.Supp. 825, denying the Government’s summary judgment motion. Defendant has appealed and we affirm.

The sole question upon appeal concerns the correct date for determining the fair market value of certain stock received by taxpayer as part of the consideration for the sale of taxpayer’s business. See Int.Rev.Code of 1954, § 1001(b).

The facts are fully set forth in the district court’s opinion, supra. They were for the most part stipulated and are not contested here. We shall recite only such facts as are necessary to accurately frame the issue.

Taxpayer was formerly known as Olson Transportation Company (Olson) and was an interstate trucking common carrier subject to the jurisdiction of the Interstate Commerce Commission (ICC). On February 26, 1968, Olson and another trucking carrier, CW Transport, Inc. (CW), executed an agreement providing for the sale of practically all of Olson’s assets to CW. The proposed sale required ICC approval. 49 U.S.C. § 5. For compelling business reasons, Olson and CW agreed to seek permission from the ICC for CW to assume temporary control of Olson pending final approval of the sale by the ICC. See 49 U.S.C. § 310a(b). Temporary authority was granted on March 26, 1968, and management control was assumed by CW on April 1, 1968. Final approval of the sale was granted by the ICC on August 30, 1968, and on that same date title was transferred and the purchase price was paid.

In a number of significant respects, the terms of the sale were linked to the temporary control date. Coincident with its takeover on April 1, CW replaced all Olson officers and all but one Olson director with officers and directors named by CW. Olson’s tangible assets were sold for a cash price based largely upon net book values as of April 1. Interest on the cash portion of the purchase price was to accrue from the temporary takeover date until final consummation of the sale. Similarly, profits and losses occurring after April 1 accrued solely to CW. Based upon their own experience and the advice of competent counsel, the parties were convinced that final approval by the ICC would follow as a matter of course once temporary authority was granted.

Pursuant to the agreement, Olson’s intangible assets were sold for 100,000 shares of CW common stock. CW applied for and received authorization from the ICC to issue such stock . See 49 U.S.C. § 314. The 100,000 shares were conveyed to Olson, along with the balance of the purchase price, on August 30.

The present dispute stems from the fact that the value of CW common stock nearly doubled between April 1, 1968, the date CW assumed temporary control, and August 30, 1968, the date Olson actually received the purchase price, including the stock. The district court considered it “apparent that the [April 1] transfer was considered permanent by those within the industry,” and found that the marked increase in value “was probably attributable to CW’s assumption of the plaintiff’s operations.”

In its 1968 federal income tax return, taxpayer valued the 100,000 shares of CW stock at their market value on April 1, 1968. The Internal Revenue Service disagreed and, in a 30-day deficiency letter, valued the CW shares at their substantially higher value as of August 30, 1968. Taxpayer paid the proposed deficiency, with interest, in the amount of $402,360.02. Upon the subsequent disal-lowance of its timely claim for refund, taxpayer brought the instant action in district court.

Upon consideration of the record in this case, as well as the briefs and oral argument, we agree with the district court that the taxpayer’s choice of valuation dates was the correct one. Since we also are in substantial agreement with the reasoning thereof, we adopt Judge Gordon’s excellent opinion as our own and upon that authority affirm the judgment below.

Affirmed.

      . “§ 1001. Determination of amount of and recognition of gain or loss
      (b) Amount realized. — The amount realized from the sale or other disposition of property shall be the sum of any money received plus the fair market value of the property (other than money) received. * * * ”

      . These findings apparently were derived from the uneontested affidavit of James F. Heyrman, Executive Vice President of Olson, which states, in pertinent part:
      “There were no factors of significance which could be responsible for the substantial increase in the market value of the stock during such period other than the public announcements of the Agreement to sell the Company assets to CW and the grant to CW of temporary control of the Company through management Such announcements had a material effect on the market for CW stock because persons knowledgeable in the trucking industry understood that the grant of temporary authority was tantamount to final approval and knew that the savings to CW through elimination and combination of the duplicate facilities of the Company and CW over the Green Bay-Chicago route would be in the neighborhood of $1,000,000 per year (the pro-forma earnings statement submitted to the ICC disclosed annual savings of $1,000,013).”


text:
    Van AKINS et al., Petitioners-Appellants, v. Harold J. CARDWELL, Warden, Arizona State Prison, Respondent-Appellee.
    No. 73-1449.
    United States Court of Appeals, Ninth Circuit.
    June 21, 1974.
    B. Michael Dann (argued), of Treon, Warnicke & Dann, Phoenix, Ariz., for petitioners-appellants.
    William J. Schafer, III, Chief Counsel, Grim. Div., Phoenix, Ariz. (argued), Gary K. Nelson, A tty. Gen., for respondent-appellee.
    Before MERRILL and DUNIWAY, Circuit Judges, and FERGUSON, District Judge.

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

   OPINION

PER CURIAM:

In one respect — the rereading of the court’s instruction to the jury at the jury’s request and in the absence of the defendants, the facts of this case are almost a carbon copy of those in Busta-mante v. Eyman, 9 Cir., 1972, 456 F.2d 269 (Bustamante I). In Bastamante, after our remand, a hearing was held at which testimony was received as to what happened when a tape recording of the court’s instructions was played back to the jury. On the basis of that evidence, the trial judge concluded that the presumption of prejudice had been overcome. We have now upheld that decision. Bustamante v. Cardwell, 9 Cir., 1974, 497 F.2d 556 (1974). (Busta-mante II) In the case at bar, such a hearing was held before the trial court denied the present petition for a writ of habeas corpus. The State was unable to produce any record, or any testimony, as to what occurred. Thus, as in Busta-mante I, there is nothing to overcome the presumption that the error was prejudicial. Bustamante II is not in point. Hence, the writ must issue unless the State grants the appellants a new trial.

Petitioner Van Akins was 17 years old at the time of the crime. He claims that when the juvenile court relinquished its jurisdiction he did not receive the due process to which he was entitled under Kent v. United States, 1966, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84. In Harris v. Procunier, 9 Cir., 1974, in banc, 498 F.2d 576 (1974), we have held that Kent is not retroactive. Van Akins’ claim is rejected on the authority of Harris.

Appellants raised four other claims of constitutional error in their petitions before the district court. Because it is unlikely that any of the alleged errors will occur at a new trial, we need not reach these claims. However, we assume that before the appellants’ out-of-court statements made to state law enforcement officers are introduced in a new trial, the appellants will be given the constitutionally required voluntariness hearing that the district court found to have been denied to them in their first trial.

The order appealed from is vacated and the case is remanded to the district court, with directions to hold the case for sixty days to enable the State of Arizona to grant appellants a new trial. If a new trial is not granted within that time, the writ shall issue.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 18, AFL-CIO, Respondent.
    No. 73-2140.
    United States Court of Appeals, Sixth Circuit.
    Argued June 6, 1974.
    Decided July 5, 1974.
    Douglas S. McDowell, N. L. R. B. for petitioner; Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Robert G. Sewell, A tty., N. L. R. B., Washington, D. C., on brief.
    Jeffrey A. Belkin, Belkin & Belkin, Cleveland, Ohio, for respondent.
    Before CELEBREZZE and MILLER, Circuit Judges, and GRAY, District Judge.

       The Honorable Frank Gray, Jr., Chief Judge, United States District Court for the Middle District of Tennessee, sitting by designation.

   PER CURIAM.

In this action the National Labor Relations Board has applied, pursuant to Section 10(e) of the National Labor Relations Act (29 U.S.C. § 160(e)), for enforcement of its Order issued against the Respondent August 27, 1973. The Board’s Decision and Order are reported at 205 NLRB 146.

The Board found that Respondent had violated §§ 8(b)(2) and 8(b)(1)(A) of the Act in actions involving Union members Walter Shimman and Glenn Oberle and § 8(b)(1)(A) by threatening members with loss of employment opportunities and related reprisals because they opposed the incumbent leadership of the Union. The Board ordered certain specific relief and the posting and mailing of notice.

Respondent asserts that the Order is not supported by substantial evidence, particular attack being made upon the decisions of the Administrative Law Judge on the credibility of witnesses. There are substantial conflicts in the testimony, but it is the function of the Board to resolve questions of fact and credibility, and, if there is substantial evidence to support the Board’s findings, they must be accepted by this Court. National Labor Relations Act, Section 10(e), 29 U.S.C. § 160(e); Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); N.L.R.B. v. RAWAC Plating Co., 422 F.2d 1259 (6th Cir. 1970).

Upon consideration of the entire record, the briefs and oral arguments, the Court concludes that the factual findings of the Board are supported by substantial evidence and that the Administrative Law Judge did not abuse his discretion in making determinations as to credibility of witnesses.

The Order of the Board is enforced.


author: PER CURIAM. PELL, Circuit Judge

text:
    Lowell F. HOLSAPPLE, a minor by his father and next friend, Plaintiff-Appellee, v. Raymond D. WOODS et al., Defendants-Appellants.
    No. 74-1116.
    United States Court of Appeals, Seventh Circuit.
    May 22, 1974.
    Certiorari Denied Oct, 21, 1974.
    See 95 S.Ct. 185,

      James W. Sanders, Marion, 111., for defendants-appellants.
    Gerald L. Montroy, Harold H. Pen-nock, Jr., Centraba, 111., for plaintiff-appellee.
    Before FAIRCHILD, CUMMINGS and PELL, Circuit Judges.
   PER CURIAM.

This matter comes before the Court on the filing of the record and briefs of the parties and on the submission by the appellee of a motion for affirmance without oral argument pursuant to Circuit Rule 22. On consideration whereof, we grant the motion and affirm the judgment of the court below.

Plaintiff Lowell F. Holsapple is a male student at Odin High School, Odin, Illinois. On August 28, 1973, he enrolled for the fall semester at the school, at which time he was provided with a copy of the School Board Policy on grooming. The grooming provision read: “Excessively long hair to the eyebrows, ears, and to the collar will be cause for dismissal.” On September 17, 1973, plaintiff was suspended for violation of the grooming provision. He then filed a civil rights complaint and a motion for temporary restraining order in the district court against defendant Superintendent of the Public School and members of the Board of Education, requesting judgment declaring the grooming policy unconstitutional and other relief. Plaintiff remained suspended from school until September 25, 1973, at which time the district court approved a stipulation between the parties that the plaintiff could return to school without altering his hair, pending final hearing on the merits of the case. A consolidated hearing on motions for preliminary and permanent injunctions was held on October 9, 1973, at which four witnesses for the defendants testified. The stipulation referred to supra remained in effect until November 1, 1973, when the district court entered judgment declaring the portion of the grooming code relating to boys’ hair unconstitutional, as violative of the Fourteenth Amendment. Defendants have appealed, raising two issues.

I

Defendants first contend that the district court erred in holding that no evidence was presented at trial that showed a direct correlation between students’ hair length and the creation and maintenance of a proper learning atmosphere. They point to certain excerpts from testimony of the four expert witnesses to show that evidence was in fact presented to show a correlation between dress and grooming on the one hand and behavior on the other; and that length of hair is part of this good grooming-good behavior nexus. They argue that the existence of such testimony refutes, as erroneous, the following two findings of fact and conclusions of law of the trial court:

“18. There is no evidence that length of the Plaintiff’s hair or the length of any other student’s hair has adversely affected the learning experience of Odin High School.
* * X * * *
“21. There is no evidence that a substantial nexus exists between the length of the Plaintiff’s hair or the length of any other student’s hair, whether long or short, and discipline problems at Odin High School.”

We find this contention to be without merit.

As the court in Franks v. National Dairy Products Corp., 414 F.2d 682, 685 (5th Cir. 1969), stated:

“It is not our task to re-try the facts of the case; this is especially true where the lower court’s findings are based on oral testimony and the trial judge has viewed the demeanor and judged the credibility of the witnesses .... The trial court was not bound to accept the opinion of the expert witness but, rather, had a right to use his own common sense and experience and to draw all reasonable inferences from the physical facts and occurrences.”

Furthermore, findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. F.R.Civ.P. 52(a); see Lichter v. Goss, 232 F.2d 715, 719 (7th Cir. 1956).

In the instant case, the district judge in the main body of his opinion and order, stated as follows:

“ . . . School authorities must meet a substantial burden to justify any infringement of this constitutional right of the plaintiff.
* * * -X- * -X-
“ . . . They [the expert witnesses] testified that ‘good grooming’ was related to ‘proper behavior,’ and that students in academic or disciplinary trouble frequently wore long hair.
“The court finds that this testimony is insufficient to justify the school hair regulation. No effort was made to define ‘proper behavior’ or ‘good grooming.’ . . . More fundamentally, defendants failed to show how long hair could cause academic or discipline problems.” (Emphasis supplied) .

Mindful of the district judge’s opportunity to judge the demeanor and credibility of witnesses, and after reviewing the transcript of proceedings and the two findings complained of in light of the district judge’s opinion — part of which is set out supra, we conclude that the district judge’s findings are not clearly erroneous so as to require setting them aside.

II

Defendants next contend that the hair regulation does not infringe the constitutional rights of the plaintiff. We disagree.

The law of this Circuit is well settled that in a school context, the right to wear one’s hair at any length or in any desired manner is an ingredient of personal freedom protected by the United States Constitution. Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969); Crews v. Clones, 432 F.2d 1259 (7th Cir. 1970); Arnold v. Carpenter, 459 F.2d 939 (7th Cir. 1970), To limit or curtail this or any other fundamental rights, the state has a “substantial burden of justification.” Breen, supra, at 1036. “Substantial justification” has been defined by the United States Supreme Court as follows:

“ * * * [¶] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression ; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968).

An examination of the record and transcripts in this case reveals, simply, that the defendants failed to meet this substantial burden of justification. Defendants have fallen far short of showing that poor' discipline and lower grades are caused by hair length in violation of the school standard and are “so aggravated, so frequent, so general, and so persistent that this invasion of student’s individual freedom by the state is warranted.” Breen, supra at 1036, 1037.

Accordingly, the judgment of the district court is

Affirmed.

PELL, Circuit Judge

(concurring):

I join in this opinion solely because it restates well-established authority in this Circuit. Despite the fact that opposing views have been held in the federal courts on the high school-hair issue, the Supreme Court has apparently not deemed the issue to be of sufficient constitutional significance to grant certio-rari. I entertain the opinion that the federal courts of this Circuit, including this Court, might have been well advised to have reached the same result, but they have not.

      . At the final hearing, the defendants produced four experienced educators and administrators as witnesses. One, Raymond D. Woods, one of the defendants herein, testified that there is a direct correlation between dress and grooming and behavior (Tr. 20-23) and that hair length is related to a student’s classroom attitude, discipline and grades (Tr. 26 and 27). James Doggin then testified that the wearing of long hair by students interferes with the learning process (Tr. 46) and that such students create problems related to discipline (Tr. 46 and 47). Another witness, Gerhardt C. Matzner, a Professor of School Administration at Eastern Illinois University, stated that students with long hair generally continue to cause discipline problems at the college level (Tr. 60-61) and such long hair is generally a symbol of rebellious attitudes and conduct toward school authorities which they must be permitted to discourage (Tr. 61). The final witness for defendants was Ruth Wes-terhold who is currently Chief Psychologist of the three-county Kaskaskia Special Education District in Illinois. She testified that in a study of seven area high schools, students with long hair were, with one exception, all in the lower three-fourths, and most were in the lowest one-fourtli, of the class (Tr. 71-73) and that there is a direct correlation between good grooming and good behavior (Tr. 70). All witnesses were subjected to cross-examination by plaintiff’s counsel.

      . “[S]tate-operated schools may not be enclaves of totalitarianism.
      * * * [Students] are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 511, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Compare" our recent decision in Miller v. School District Number 167, Cook County, Illinois, et al., 495 F.2d 658, (7th Cir. 1974). In Miller we held that “even if the individual interest in one’s [there a teacher’s] appearance may be ehar-aeterized as an interest in liberty, the denial of piiblio' employment because the employer considers the applicant’s appearance inappropriate for the position in question, does not in and of itself represent a deprivation that is forbidden by the Due Process Clause.” Id. at p. 668, emphasis supplied. Our decision in Miller did not dislodge our former holdings in Breen, Crews, and Arnold, supra, in text. “The unavailability of a teaching position in one School District is less serious . . . than the deprivation of an opportunity to obtain an education.” Miller, supra at p. 665.


text:
    L. J. “Lee” FOLKINS, dba Standard Oil Distributors, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 73-3128.
    United States Court of Appeals, Ninth Circuit.
    July 8, 1974.

      Martin F. Muench, Legal Intern, Robert D. McGoldrick, Spokane, Wash., for petitioner.
    Elliott Moore, Deputy Associate Gen. Counsel, NLRB, Washington, D. C., Charles M. Henderson, Director, Region 19 NLRB, Seattle, Wash., for respondent.
    Thomas K. Cassidy, Seattle, Wash., Teamsters, Chauffeurs, Helpers & Delivery Drivers No. 690, Spokane, Wash., for charging party.
    Before BROWNING, DUNIWAY and SNEED, Circuit Judges.
   OPINION

PER CURIAM:

L. J. Folkins petitions for review of an order of the National Labor Relations Board finding violation of Section 8(a)(3) and (1) of the National Labor Relations Act. The Board cross-petitions for enforcement of its order. The Board’s order is reported at 206 NLRB No. 35.

Folkins is engaged in the distribution of petroleum products under contract with Standard Oil Company of California. On February 12, 1973, the company hired Richard Smith as a tank truck driver. That evening, Smith accompanied three of the company’s four other employees to a meeting with union representatives. Smith and two of the other employees ultimately signed union authorization cards. The next morning, February 13, 1973, union representatives visited Folkins and requested recognition. Folkins was non-committal and the union gave the company until the afternoon to respond to the request. That afternoon Folkins discharged Smith.

At the hearing, Folkins presented numerous business justifications for the discharge. However, the Administrative Law Judge and the Board rejected each of the alleged justifications as spurious and contradicted by the evidence.

The critical issue is a factual one, namely the actual motive for Smith’s discharge. In determining motive, the Board “may rely on circumstantial as well as direct evidence and its inference and finding must prevail where it is reasonable and supported by substantial evidence on the record considered as a whole.” Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456.

Circumstantial evidence, including the timing of Smith’s discharge, coupled with Folkins’ apparently fabricated business justifications, is sufficient to support the Board’s findings. See N. L. R. B. v. Council Manufacturing Corp., 8 Cir., 1964, 334 F.2d 161, 164.

Folkins’ petition is denied.

The Order of the Board will be enforced.


author: CASTLE, Senior Circuit Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The PEORIA CHAPTER OF the PAINTING & DECORATING CONTRACTORS OF AMERICA AND ITS INDIVIDUAL MEMBERS, Respondent.
    No. 73-1772.
    United States Court of Appeals, Seventh Circuit.
    Argued April 19, 1974.
    Decided July 12, 1974.

      Elliott Moore, Deputy Associate Gen. Counsel, John Elligers, Atty., National Labor Relations Board, Washington, D. C., for petitioner.
    McNeill Stokes, Atlanta, Ga., for respondent.
    Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and SPRECHER, Circuit Judge.
   CASTLE, Senior Circuit Judge.

The sole question presented in this application for enforcement of an order of the National Labor Relations Board is whether § 8(d)(4) of the National Labor Relations Act prohibits an employer from locking out employees more than sixty days subsequent to receiving the union’s notice of intention to terminate the existing contract, as required by § 8(d)(1), but less than thirty days after the union untimely notifies federal and state mediation services under § 8(d)(3). We deny the petition for enforcement.

On February 14, 1972, Local 157 of the International Brotherhood of Painters and Allied Trades (“the Union”) sent written notice to the Peoria Chapter of the Painting and Decorating Contractors of America (“the Association”), the collective bargaining representative for twenty-six member employers, that it was prepared to renegotiate the existing contract, which was due to expire on April 30, 1972. Formal negotiations between the parties commenced on March 23, 1972. At the second bargaining session on April 10, the Union advised the Association that it had contacted federal and state mediation services and that subsequent sessions would occur before a federal mediator. The federal and state mediation agencies received the Union’s request for services in the mail on April 11, 1972. A federal mediator attended the next negotiating session, held on April 18, as well as subsequent sessions; however, no accord was reached. The Association notified the Union by telegram dated May 1, 1972 that because of the unresolved status of the contract its members’ employees would be immediately laid off until further notice. All members of the Association participated in the lockout, which extended through May 9, 1972.

The Administrative Law Judge, in an order adopted by the National Labor Relations Board, found that the Association’s lockout constituted a refusal to bargain within the meaning of §§ 8(a)(5) and (1) of the Act. The Judge determined that the lockout was unlawful because it occurred less than thirty days subsequent to the date on which notice was received by federal and state mediators and that the Union’s untimely notice to the mediators did not excuse the Association from observing the thirty-day moratorium on lockouts.

Section 8(d) of the Act, which encompasses the “cooling-off” provisions added by 61 Stat. 142 (1947), 29 U.S.C. § 158(d), provides in pertinent part:

For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: Provided, That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification—
(1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification;
(2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications;
(3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time; and
(4) continues in full force and effect, without resorting to strike or lock-out, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later

The National Labor Relations Board concedes that under § 8(d), the Union, as the party initially desiring to modify the contract, was obligated to notify federal and state mediation services within thirty days after notifying the Association of its intention to seek modification of the existing contract. However, citing Local Union 219, Retail Clerks International Association, AFL-CIO v. NLRB, 105 U.S.App.D.C. 232, 265 F.2d 814 (1959) for the proposition that § 8(d)(3) and (4) require a thirty-day period between untimely notification or mediation services and a strike or lockout by the party required to give notice, the Board contends that the party not obligated to give notice under § 8(d)(3) must also observe a thirty-day moratorium following the initiating party’s untimely notification of mediation agencies before calling a strike or lockout, even if the total elapsed time following receipt of notification of the initiating party’s intent to modify or terminate the contract exceeds sixty days. In deciding this case, we must therefore determine, firstly, whether obligations expressly imposed on the initiating party by § 8(d)(4) are implicitly applicable to the noninitiating party. Secondly, if we find that the requirements of § 8(d)(4) are applicable to the noninitating party, we must then decide whether that section requires a party to bargain collectively for thirty days following untimely notice to mediators, even when the sixty-day “cooling-off” period embodied in § 8(d)(1) has expired.

By its terms § 8(d) requires both parties to observe “the mutual obligation to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment.” Under this general duty to bargain collectively, the statute imposes additional responsibilities in § 8(d)(l)-(4) on “the party desiring such termination or modification” of the existing contract. Two of these provisions, § 8(d)(1) and (3), relate to the serving of notice to the other party to the collective bargaining agreement and to the mediators, respectively. These provisions have always been interpreted as applicable only to the party initiating the dispute. In United Furniture Workers of America, AFL-CIO v. NLRB, 118 U.S.App.D.C. 350, 336 F.2d 738 (1964), the court held that § 8(d) placed the burden for giving the required notices under § 8(d)(3) as well as under § 8(d)(1), “upon the party to the contract who raises the possibility of industrial conflict by moving to open up the existing contractual agreements.” Id. at 741. See also, Carpenters District Council and Vicinity v. Rocky Mountain Prestress, Inc., 172 NLRB No. 87 (1968). Obviously, only the party initiating the dispute would be in a position to notify the other party. And, in United Furniture Workers, the court eloquently stated that “the peril that the public interest in the emollient intervention of the mediation services will fall between the two stools of contending parties wholly intent upon the uncertain fortunes of their negotiating positions . . . [was] avoided by assigning a fixed and definite responsibility for notifying the public agencies. Congress has made that assignment and, not surprisingly, it is to the party who starts the process.” Id. at 741. As Congress intended that the phrase “party desiring such termination or modification” refer to the initating party with reference to clauses (1) and (3), surely Congress intended for that phrase to bear the same meaning in the context of clauses (2) and (4), which require such party to offer to meet and confer with the other party and to continue the terms of the existing contract without resort to strike or lockout for a period of sixty days after notice is given. That clauses (2) and (4) are applicable only to the initiating party is established by the phrase in clause (4) “for a period of 60 days after such notice is given” (emphasis added). As explained previously, only the party who initiated the dispute could possibly be able to provide such notice to the other party. The Administrative Law Judge concluded as a matter of law that the Association violated § 8(d) (4). Since the command of § 8(d)(4) was directed only to the initiating party and since the Union, not the Association, initiated this dispute, the Association cannot be held liable for violating § 8(d)(4), on which the findings of unfair labor practices violative of § 8(a) (5) and (1) were predicated.

Nor do we believe that the Association could have been held liable for violating its § 8(d) duty to bargain collectively by calling a lockout more than sixty days after the Union notified the Association of its intention to renegotiate the agreement but less than thirty days after the Union untimely notified mediation agencies. The Association had a duty to observe the terms of the existing bargaining agreement and to negotiate in good faith while the Union performed its obligation under § 8(d)(4) of complying with present contractual provisions without resorting to a strike “for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later.” Applying the plain language of the statute, it is clear to us that the Union fulfilled its § 8(d)(4) obligations to observe the terms of the existing contract and to refrain from striking on April 30, 1972, the date on which the contract expired (and seventy-six days after the Union gave notice to the Association); thereafter, the Association was not precluded from calling a lockout. This conclusion is supported by both a textual analysis of the statute and legislative history. The section is clearly phrased in terms of a unitary sixty-day waiting period keyed to the notice provision of § 8(d)(1) or the expiration date of the contract, whichever occurs later. The intent of § 8(d)(4) is obviously to extend the term of the contract, reflecting a legislative conclusion that the maintenance of normalcy in industrial operations is conducive to the rapid settlement of disputes. There is no provision in § 8(d)(4) for a bifurcated waiting period of thirty days following each of the two statutory notices when the notice to the mediators is untimely given. That result, which is advocated by the Board, is in fact antithetical to the statutory scheme and would upset the delicate timing mechanism embodied in the Act. Section 8(d) provides for the introduction of mediators into the dispute at the optimum time for settlement: after the parties themselves have had an opportunity to make an initial attempt at settlement, while both contractual working conditions and negotiations continue without interruption, and while the parties are influenced by the increasing possibility of a strike or lockout. If the waiting period were to be construed as two thirty-day segments, the probability of successful mediation occurring after untimely mediation notice is given following a possible lapse in negotiations at the completion of a thirty-day period after notice was given to the other party is less apparent.

Moreover, the interpretation for which the Board contends, would vitiate the right of employers recognized in American Shipbuilding Co. v. NLRB, 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965), to lawfully temporarily lock out employees during a labor dispute in order to bring economic pressure in support of their bargaining positions. If we adopted the Board’s approach, a non-initiating party who bargained in good faith during the sixty-day “cooling-off” period and then concluded that lawful coercion in the form of a lockout was necessary to facilitate a settlement restoring industrial harmony would be at the mercy of the party who initiated the negotiations for a new contract. That party, by unlawfully prolonging its § 8(d)(3) obligation to notify state and federal mediation services and then subsequently notifying the mediators at a propitious moment when the employer has called for a lockout, can skillfully manage to inflict liability for employee back-pay awards on the employer. (The converse is, of course, equally true: by withholding notification of mediators, an initiating employer could notify the mediation service when the union was on the verge of the strike at which point the union might incur the loss of its membership by lawful discharge.) Alternatively, the initiating party could keep its threat of untimely notification of mediators in reserve to neutralize any pressure through strike or lockout which the other party might muster after sixty days to resolve the dispute quickly (though that party would be obligated to notify the mediators at some point to avoid liability. United Furniture Workers of America v. NLRB, supra.)

Furthermore, there is nothing in the legislative history of the Act which suggests either that the extent of the “cooling-off” period is variable, depending on when the initiating party chooses to notify the mediators, or that the mediation provision is operative independently of the entire § 8(d) scheme. On the contrary, the legislative history suggests that notice to the mediation services within thirty days after notice is given to the other party implies the corresponding obligation by the noninitiating party to bargain in good faith during the remaining portion of the sixty-day period. Thus, once the noninitiating party has observed its duty to bargain collectively during the sixty-day period subsequent to receiving notice, it has fulfilled its duty under § 8(d), whether or not the initiating party has met its obligation under § 8(d)(3) to notify state and federal mediators.

In so holding, we reject any implication in Local Union 219, Retail Clerks International Association, AFL-CIO v. NLRB, supra, extending the noninitiat-ing party’s duty to bargain collectively beyond the sixty-day “cooling-off” period commencing with notice to the non-initiating party. In Retail Clerks, the court held that the initiating party, the union, had violated § 8(d)(4) by calling a strike 10 days subsequent to the giving of untimely notice to federal and state mediators, although the strike occurred after the sixty-day waiting period had passed. The court obviously sought to mitigate “the harsh result” of International Union of Operating Engineers, Local No. 181 v. Dahlem Construction Co., 193 F.2d 470 (6th Cir. 1951), where the court held that the failure to give timely notice to mediators under § 8(d)(3) forever tainted under § 8(d)(4) a subsequent strike, by stating that an initiating union could lawfully call a strike thirty days after giving untimely notice because the scheme of the Act only envisioned a thirty-day waiting period after the giving of timely notice. It is unnecessary for us to pass judgment on the question raised in Retail Clerks at this time. We note only that in reaching its result on a somewhat equitable basis, the court noted, significantly, that “even though the waiting period is now beyond a literal 60-day period, this added period hardly seems to violate Sections 7 and 13 [relating to the right to strike], for it is only brought about by the union’s failure to give the notice prescribed by Section 8(d)(3) . . . and not because of a harsh interpretation of the Act.” Id. 265 F.2d at 819. Precisely the opposite would occur here if the Board’s position were adopted. The Association, the noninitiating party, would be penalized through the burden of observing an additional thirty-day waiting requirement because the Union, the initiating party, violated its duty to give the notice to mediators prescribed by § 8(d)(3). The adoption of the Board’s position would indeed necessitate a “harsh interpretation of the Act.”

The petition of the National Labor Relations Board is denied.

Denied.

      . We recognize that the Board has adopted a contrary position in Carpenters District Council and Vicinity v. Rocky Mountain Prestress, Inc., 172 NLRB No. 87 (1968), though without explanation or citation to any authority. The Board might have been simply using a shorthand expression to describe the indirect operation of § 8(d)(4) on noninitiating parties through § 8(d). As discussed above, we interpret § 8(d) as requiring the noninitiating party to bargain collectively until the initiating party has satisfied its obligations under § 8(d) (4).

      . We recognize, of course, that other aspects of § 8(d) and especially § 8(d)(4) are “susceptible of various interpretations” and “subject to ambiguity.” NLRB v. Lion Oil Co., 352 U.S. 282, 288, 77 S.Ct. 330, 1 L.Ed.2d 331 (1957); Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309 (1956); Final Report of the Joint Committee on Labor-Management Relations, S. Rep.No. 986, Pt. 3, 80th Cong., 2nd Sess. 62-63. We are satisfied, however, that none of the ambiguities mentioned in the above citations are relevant to the issue presented in this case nor bar our reliance on the plain words of this aspect of the statute.

      . See generally, S.Rep.No.105, 80th Cong., 1st Sess. (1947); H.R.Rep.No.510, 80th Cong., 1st Sess. (1947); H.R.Rep.No.245, 80th Cong., 1st Sess. (1947) ; Legislative History of the Labor Management Relations Act (1947).


author: EUGENE A. WRIGHT, Circuit Judge:

text:
    Douglas GREGORY, Plaintiff-Appellee, v. John J. THOMPSON, Defendant-Appellant.
    No. 72-3000.
    United States Court of Appeals, Ninth Circuit.
    July 2, 1974.
    Rehearing Denied Aug. 14, 1974.

      Robert Morrison (argued), Sierra Vista, Ariz., for defendant-appellant.
    Roger C. Wolf (argued) of Risner, Wolf & Raven, Tucson, Ariz., for plaintiff-appellee.

      Before WRIGHT, CHOY and SNEED, Circuit Judges.
   OPINION

EUGENE A. WRIGHT, Circuit Judge:

Plaintiff Gregory sued for damages for violation of his civil rights under 42 U.S.C. § 1983. His complaint, supported by testimony in a trial to a jury in the District Court for the District of Arizona, was that he was subjected to an assault and battery by defendant Thompson, a justice of the.peace, in the latter’s courtroom. The court entered judgment on a jury verdict in the amount of $1,500 actual damages and $500 punitive damages.

On this appeal, Judge Thompson contends that two essential elements of a civil rights claim are lacking and that he should have the protection of the doctrine of judicial immunity. We reject both contentions and affirm the decision below.

Gregory, a former actor retired for disability, was 65 years of age when he injected himself into a minor traffic violation case involving Army Sergeant McCullough. The sergeant had pleaded guilty a week earlier, had been fined $25 by Judge Thompson, and was allowed time to pay the fine. Believing that the court had acted without jurisdiction and that the sentence was illegal, Gregory, accompanied by Sergeant McCullough, went to Judge Thompson’s courtroom on a regular court day. In response to an inquiry from the judge, who was not then engaged in any other trial, Gregory said he would like to represent the sergeant.

Judge Thompson responded that a non-lawyer could not do so, and he either politely asked or emphatically told Gregory to leave the courtroom. Gregory’s answer was, “O.K., you throw me out.” The judge left his desk in the courtroom and did just that. It appears that he forced Gregory out the door, threw him to the floor in the process, jumped on him, and began to beat him. The judge’s secretary ran to the sheriff’s office down the hall, and two deputy sheriffs came to Gregory’s rescue.

Judge Thompson had been a justice of the peace in Arizona for eight years, following 23 years of military service. He is not a lawyer and has neither legal training nor a college degree. When called as a witness by plaintiff Gregory, he admitted that he may have pushed Gregory, “because he was disrupting the proceedings of the court.” He testified, “I went around that desk to remove him from the courtroom sir.” Judge Thompson claims he was sitting on top of Gregory only to prevent Gregory from banging his head on the wall, since Gregory appeared to be having an epileptic fit. The judge testified, however, that he could, and should, have asked someone in the courtroom to get the sheriff down the hall to remove Gregory from the courtroom.

Somewhat remarkably, the secretary who had been seated in the courtroom and one other bystander said they saw no assault. Nor did Sergeant McCullough. The jury, however, aided by photographs taken of Gregory shortly thereafter and the admissions made by Judge Thompson, concluded that an assault had indeed taken place and that Gregory had been injured.

Two issues - confront us in this case: (1) Is plaintiff’s claim cognizable under the Civil Rights Act [42 U.S.C. § 1983] ? (2) Is defendant nevertheless shielded from liability by judicial immunity ?

I

For Gregory’s claim to be cognizable under the Civil Rights Act, he must establish that Judge Thompson was acting under color of state law and in so doing deprived him of some right, privilege, or immunity guaranteed by the Constitution or laws of the United States. 42 U.S.C. § 1983; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

We hold that a state judicial officer is acting under color of state law when he evicts from his courtroom one who is there on court business. See McAlester v. Brown, 469 F.2d 1280 (5th Cir. 1972); Mullins v. Oakley, 437 F.2d 1217 (4th Cir. 1971).

Judge Thompson contends that a Justice of the Peace violates no right protected by 42 U.S.C. § 1983 when he assaults a person in his courtroom. The contention lacks merit. It is well established that § 1983 provides a remedy for one who has been the victim of an assault and battery at the hands of a person acting under color of state law. Lucarell v. McNair, 453 F.2d 836 (6th Cir. 1972); Cohen v. Norris, 300 F.2d 24, 34 (9th Cir. 1962); see Jenkins v. Averett, 424 F.2d 1228, 1232 (4th Cir. 1970). The right violated by an" assault has been described as the right to be secure in one’s person, and is grounded in the due process clause of the Fourteenth Amendment. See Curtis v. Everette, 489 F.2d 516 (3d Cir. 1973); Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973); Reed v. Philadelphia Housing Authority, 372 F.Supp. 686 (E.D.Pa.1974). Gregory’s complaint therefore sufficiently stated a claim cognizable under § 1983.

II

A seemingly impregnable fortress in American Jurisprudence is the absolute immunity of judges from civil liability for acts done by them within their judicial jurisdiction. Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). The general rule, laid down over a century ago, is that judges are immune from suit for judicial acts within and even in excess of their jurisdiction even if those acts were done maliciously or corruptly; the only exception to this sweeping cloak of immunity exists for acts done in “the clear absence of all jurisdiction.” Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L.Ed. 646 (1871); see Lucarell v. McNair, 453 F.2d 836, 838 (6th Cir. 1972); Lynch v. Johnson, 420 F.2d 818, 820 (6th Cir. 1970); Agnew v. Moody, 330 F.2d 868, 870 (9th Cir.), cert. denied, 379 U.S. 867, 85 S.Ct. 137, 13 L.Ed.2d 70 (1964); Sires v. Coles, 320 F.2d 877 (9th Cir. 1963). Justices of the Peace, it is well established, fall within the protective ambit of the doctrine. Mississippi ex rel. Giles v. Thomas, 464 F.2d 156, 159-160 (5th Cir. 1972); Hurlburt v. Graham, 323 F.2d 723, 725 (6th Cir. 1963); Tate v. Arnold, 223 F.2d 782, 786 (8th Cir. 1955).

Judges may invoke the doctrine not merely in their defense at trial, but rather as a plea to bar the trial itself. This is justified, said Judge Learned Hand, because “to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.” Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949). If the essence of Judge Thompson’s conduct is protected by immunity, therefore, it remains protected even if the plaintiff alleged that Thompson used manifestly excessive force. Any other rule would place a judge at the mercy of a pleader’s allegations. See Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 95 L.Ed. 1019 (1951).

Rather, our inquiry must be to whether Judge Thompson acted in the clear absence of all jurisdiction. Appellant contends that a judge has the inherent power to maintain order in the courtroom and that he was exercising this power when he used force to evict Gregory from his courtroom. He claims, therefore, that his assault on Gregory was at most in excess of his jurisdiction, but certainly not in the clear absence of all jurisdiction.

This argument misses the mark. When courts have spoken of immunity for acts within the jurisdiction of a judge, they have declared that the doctrine insulates judges from civil liability “for acts committed within their judicial jurisdiction,” or “for acts within [their] judicial role,” Pierson v. Ray, 386 U.S. at 554, 87 S.Ct. at 1218, or for “their judicial acts.” Bradley v. Fisher, 80 U.S. (13 Wall.) at 351. (Emphasis added.) Thus judicial immunity does not automatically attach to all categories of conduct in which a judge may properly engage, but only to those acts that are of a judicial nature.

What constitutes conduct falling within that range must, in large part, be determined by looking at the purpose underlying the doctrine of judicial immunity. Official immunity, after all, “is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective fune-tioning of government.” Barr v. Mat-teo, 360 U.S. 564, 572-573, 79 S.Ct. 1335, 1340, 3 L.Ed.2d 1434 (1959). Immunity is thought necessary to insulate judges from intimidation that might rob them of the independence so crucial to- the public’s interest in principled and fearless decision-making.

[I]immunity . . . “is not for the protection of benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.” . . . It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.

Pierson v. Ray, 386 U.S. at 554, 87 S.Ct. at 1218 (citations omitted). The Supreme Court has made it clear that the doctrine of immunity should not be applied broadly and indiscriminately, but should be invoked only to the extent necessary to effect its purpose. See Doe v. McMillan, 412 U.S. 306, 319-325, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973). We also must look beyond the status of the party seeking immunity and consider the nature of the conduct for which immunity is sought. See C. M. Clark Insurance Agency, Inc. v. Maxwell, 156 U.S.App.D.C. 240, 479 F.2d 1223, 1227 (1973); McCray v. Maryland, 456 F.2d 1, 3-4 (4th Cir. 1972); Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358, 362 (1971), rev’d on other grounds, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973); Dodd v. Spokane County, 393 F.2d 330, 335 (9th Cir. 1968); Robichaud v. Ronan, 351 F.2d 533, 537 (9th Cir. 1965); Corsican Productions v. Pitchess, 338 F.2d 441, 444 (9th Cir. 1964); cf. Johnson v. Alldredge, 488 F.2d 820, 824 (3d Cir. 1973); Hampton v. City of Chicago, 484 F.2d 602, 608 (7th Cir. 1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974).

It is within a judge’s power— indeed, it is his obligation — to “protect the sanctity and dignity of . . courtroom proceedings. . . .” Mullins v. Oakley, 437 F.2d 1217, 1218 (4th Cir. 1971). A judge’s criminal contempt power provides him with the judicial muscle to cope with such situations, and the exercise of that power, clearly judicial in character, falls within the scope of the immunity doctrine. See McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972). It may even be necessary in an isolated instance to use physical force to preserve order. Though necessary, that does not mean the judge is immune. The decision to personally evict someone from a courtroom by the use of physical force is simply not an act of a judicial nature, and is not such as to require insulation in order that the decision be deliberately reached. A judicial act within the meaning of the doctrine may normally be corrected on appeal. See Pierson v. Ray, 386 U.S. at 554, 87 S.Ct. 1213. But when a judge exercises physical force in a courtroom, his decision is not amenable to appellate correction. More importantly, we cannot believe that the purpose of the judicial immunity doctrine — to promote “principled and fearless decision-making” — will suffer in the slightest if it is held that judges who physically assault persons in their courtrooms have no automatic immunity.

This case is analogous to Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965). In considering the well-established absolute immunity of prosecuting attorneys acting as “quasi-judicial” officers of the court, we there held that when a prosecuting attorney performs acts ordinarily related to police activity, as opposed to judicial activity, judicial immunity is not warranted. Similarly, here Judge Thompson could have summoned a sheriff to escort Gregory from the courtroom; indeed, he concedes that is what he should have done. Had he done so, and had the sheriff assaulted Gregory, the sheriff would not have been entitled to claim absolute immunity but only the defense that he was acting in good faith. Judge Thompson’s choice to perform an act similar to that normally performed by a sheriff or bailiff should not result in his receiving absolute immunity for this act simply because he was a judge at the time. As we held in Robichaud v. Ronan, “it seems neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.” Id. at 536-537.

However, like the prosecuting attorney in Robichaud v. Ronan, Judge Thompson should be able to claim a qualified immunity which would insulate him from civil liability if he acted in good faith even while using excessive force. See also Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

The jury in the trial below was not specifically instructed that Judge Thompson was entitled to this good faith defense. The district judge instructed the jury, however, that it should find Judge Thompson liable only if it found that he used more than “reasonable force.” The jury was further instructed to award punitive damages only if, after finding that Judge Thompson acted unreasonably, it also found him to have acted “maliciously or wantonly or oppressively.” The jury returned a verdict against the judge for both actual and punitive damages. Since he could not have acted both in good faith and “maliciously or wantonly or oppressively,” we see no reason to remand for a specific instruction on good faith.

Affirmed.

      . Numerous critics of the doctrine of absolute immunity contend that its purpose— promoting principled and fearless decision-making — is adequately ensured without insulating judges from liability for malicious and ’ corrupt acts. A standard similar to the “actual malice” standard of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), has been suggested as an alternative. See Comment, Liability of Judicial Officers Under Section 1983, 79 Yale L. J. 322 (1969).

      . Examples of acts “in the clear absence” of jurisdiction include a judge’s interference with judicial proceedings after he had disqualified himself from acting "therein, see Spires v. Bottorff, 317 F.2d 273 (7th Cir. 1963), cert. denied 379 U.S. 938, 85 S.Ct. 343, 13 L.Ed.2d 349 (1964), and a judge’s ordering a person sterilized totally without statutory authority. Wade v. Bethesda Hospital, 337 F.Supp. 671 (S.D.Ohio 1971).

      . See McCray v. Maryland, 456 F.2d 1, 3 (4th Cir. 1972) :
      The rule is tolerated, not because corrupt or malicious judges should be immune from suit, but only because it is recognized that judicial officers in whom discretion is entrusted must be able to exercise discretion vigorously and effectively, without apprehension that they will be subjected to burdensome and vexatious litigation.

      . The Court concluded that the general doctrine of official immunity does not insulate the Public Printer and the Superintendent of Documents from civil liability. The Court stated that this doctrine seeks to reconcile two important considerations:
      [O]n the one hand, the protection of the individual citizen against pecuniary damage caused by oppressive or malicious action on the part of officials of the Federal [or State] Government; and on the other, the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits brought on account of action taken in the exercise of their official responsibilities.
      Doe v. McMillan, 412 U.S. 306, 319, 93 S.Ct. 2018, 2028, 36 L.Ed.2d 912 (1973), quoting Barr v. Matteo, 360 U.S. 564, 565, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). Given these considerations, a court faced with deciding whether a particular official is protected by immunity must make “a discerning inquiry into whether the contributions of immunity to effective government in particular contexts outweigh the perhaps recurring harm to individual citizens. . . .” Doe v. McMillan, supra, 412 U.S. at 320, 93 S.Ct. at 2028. Such an inquiry, the Court stated, is not completed simply by finding that the disputed conduct is “within the outer perimeter” of an official’s duties. Id. at 322, 93 S.Ct. 2018.

      . Section 6.3 of the American Bar Association Standards Relating to the Function of the Trial Judge (Approved Draft 1972) provides :
      The trial judge has the obligation to use his judicial power to prevent distractions from and disruptions of the trial. If the judge determines to impose sanctions for misconduct affecting the trial, he should ordinarily impose the least severe sanction appropriate to correct the abuse and to . deter repetition. In weighing the severity of a possible sanction for disruptive courtroom conduct to be applied during the trial, the judge should consider the risk of further disruption, delay or prejudice, that might result from the character of the sanction or the time of its imposition.

      . While we have said that those acting “at the direction of a judge ... to whom they were immediately and directly responsible” would enjoy quasi-judicial immunity, Gillibeau v. City of Richmond, 417 F.2d 426, 429 (9th Cir. 1969) (dictum) that immunity attaches only insofar as the authorization to act extends. Moreover, any authorization to use excessive force could shield neither a judge nor bailiff, we suppose, since that authorization would be clearly outside the jurisdiction of the judge.


author: STEVENS, Circuit Judge.

text:
    Donald C. CHRISTMAN, Plaintiff-Appellant, v. Edward V. HANRAHAN et al., Defendants-Appellees.
    No. 73-1414.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 20, 1974.
    Decided July 18, 1974.

      William J. Larned, Chicago, 111., for plaintiff-appellant.
    Richard L. Curry, Corp. Counsel, Robert R. Retke, Asst. Corp. Counsel, Bernard Carey, State’s Atty., Fredric B. Weinstein, Asst. State’s Atty., Chicago, 111., for defendants-appellees.
    Before CUMMINGS and STEVENS, Circuit Judges, and GRANT, Senior District Judge.

       Senior District Judge Robert A. Grant of the Northern District of Indiana is sitting by designation.

   STEVENS, Circuit Judge.

Evidence favorable to the accused was temporarily suppressed by the prosecution; before the trial ended, however, the evidence was revealed to the court and jury and an acquittal promptly ensued. The question presented on this appeal is whether the abortive misconduct by the prosecution gives rise to an action for damages under 42 U.S.C. § 1983. We hold that the district court properly sustained a motion to dismiss the complaint.

The complaint alleges that a storekeeper named Koppel was killed during an attempted robbery on November 6, 1970; the incident was witnessed by the victim’s wife and also by a bystander. Four months later the plaintiff was arrested and charged with murder; at a police lineup Mrs. Koppel tentatively identified plaintiff as the killer. After leaving the station, however, she telephoned a police sergeant to state that she was not positive that plaintiff was the man who had shot her husband; this information was entered on a supplemental police report.

On April 10, 1971, plaintiff’s trial on the murder charge commenced. After three days of trial, his attorney first learned of Mrs. Koppel’s telephone call expressing doubt about her identification of plaintiff. The complaint alleges that, pursuant to a discovery motion, the police report had been produced in advance of trial, but that it had been deliberately altered to omit any reference to Mrs. Koppel’s telephone call. Both the police and the prosecution are charged with complicity in the alteration and in the deliberate suppression of evidence.

When defense counsel learned of the theretofore concealed telephone call, the matter was brought to the attention of the court and the jury. It is fair to infer from the complaint that not only the call itself, but also the attempt to suppress information tending to impeach Mrs. Koppel’s testimony, constituted evidence favorable to the defense. For after only 10 minutes of deliberation, the jury returned a verdict of not guilty.

The defendants in this action include both the police officers and the prosecutors who were responsible for the alleged suppression of evidence. For purposes of our decision we, of course, accept the allegations as true and therefore start from the premise that defendants were guilty of serious misconduct. It does not necessarily follow that plaintiff was deprived of his constitutional right to a fair trial.

If evidence concerning the telephone call had been suppressed until after the trial was concluded, and if the jury had returned a guilty verdict, unquestionably plaintiff would have been deprived of his liberty without due process of law. Brady v. Maryland, 373 U.S. 83, 86-88, 83 S.Ct. 1194, 10 L.Ed.2d 215. But plaintiff was not found guilty and the relevant evidence was brought out during the course of the trial. Therefore, even though we certainly do not condone the defendants’ egregious misconduct, the trial itself, viewed as an entirety, was not fundamentally unfair.

In order to determine whether the complaint has alleged a deprivation of a federally protected right, it is necessary to identify the precise right that plaintiff seeks to vindicate. Two quite different theories must be considered. On the one hand, we might say that an accused person has a federal right to immediate disclosure, upon request, of material evidence favorable to his defense; any temporary failure to honor such a request, even if totally harmless, would violate that right. On the other hand, we might define the federal right at stake as the right to a fair trial and not regard the temporary withholding as of federal significance — regardless of its consequences as a basis for discipline as a matter of state law-unless it tainted the fairness of the criminal trial viewed as a whole.

Under the former view, the Due Process Clause would provide broad generalized protection against misdeeds by the police or prosecution; under the latter view, the mission of the clause would be avoidance of an unfair trial to the accused, and no violation would result unless the misconduct had some prejudicial impact on the defense.

As we read Brady v. Maryland, supra, the Court has directed us to take the latter view. The relevant issue in that case was whether the Due Process Clause was violated by the suppression of material evidence favorable to the accused notwithstanding the good faith of the prosecution. The Court held that it was stressing the paramount importance of the fairness of the trial as contrasted with the lesser significance of punishing the misdeeds of the prosecutor.

In his explanation of “what nondisclosure by a prosecutor violates due process,” Mr. Justice Douglas, writing for the Court, first quoted from the seminal decision of Mooney v. Holohan:

“It is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a state has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a state to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.”

294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791, quoted in 373 U.S. at 86, 83 S.Ct. at 1196.

After reviewing later cases in which it is fair to state that the entire proceedings were fundamentally unfair, the Court stated its Brady holding in these terms:

“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.
“The principle of Mooney v. Holo-han is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.”

373 U.S. at 87, 83 S.Ct. at 1197.

Although the final reference to any unfair treatment of an accused lends support to appellant’s theory, the opinion as a whole, we believe, requires an appraisal of the fairness of the complete trial. The controlling principle is not punishment of society for the prosecutor’s misdeed “but avoidance of an unfair trial to the accused.” The Brady holding is expressly applicable only “where the evidence is material.” If the Brady rule had been primarily intended to deter prosecutorial misconduct, rather than to insure fair trials, the materiality limitation would have been unnecessary. As the Court’s recent opinion in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706, demonstrates, however, this limitation is of critical importance. For in that case there was almost no discussion of the need to deter prosecutorial misconduct; on the contrary, the careful and detailed analysis of the evidence was directed entirely to establishing a lack of materiality.

In this case, the defect in the trial proceedings related entirely to the timing of the disclosure of the information concerning Mrs. Koppel’s telephone call. We may assume that the information was material as tending to impeach an important witness. Plaintiff and his counsel were, therefore, entitled to earlier access to that information; nevertheless, it is manifest that the timing of the disclosure did not prejudice the defense. The delay, even though inexcusable, did not deprive the accused of due process of law.

Duncan v. Nelson, 466 F.2d 939 (7th Cir. 1972), which involved an unconstitutionally obtained confession, is consistent with our conclusion. Although the court held that a damage recovery could not be predicated on the use of the confession at trial (which led to an invalid conviction and incarceration), the plaintiff in Duncan was given an opportunity to prove that he suffered mental anguish and possible physical harm during the unlawful interrogation itself. Duncan involved a violation of the constitutional privilege against self-incrimination rather than a violation of the right to a fair trial. Duncan’s cause of action arose before his criminal trial had even started. In this case, however, our holding that the wrongful conduct of the police and prosecution had no impact on plaintiff’s federally protected right to a fair trial disposes of his claim.

We therefore hold that the failure to allege any facts disclosing an impairment of plaintiff’s right to a fair trial, or the impairment of any other federally protected right, is fatal to plaintiff’s § 1983 claim.

Affirmed.

      . Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214; Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217; Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9; Wilde v. Wyoming, 362 U.S. 607, 80 S.Ct. 900, 4 L.Ed.2d 985.

      . Although we think the timing of the disclosure probably benefited the defense by highlighting the prosecutorial misconduct, we do not rely on that assumption. The acquittal after only 10 minutes of deliberation does establish, however, that the delayed disclosure was not prejudicial. In this case, therefore, we have no occasion to consider either (1) whether a delayed disclosure might be sufficiently prejudicial to deprive an accused of a fair trial notwithstanding his acquittal, or (2) whether, if a conviction ensues, a delay might nevertheless be harmless because the disclosure was made in time to avoid any significant risk of prejudice.

      . “Although physical violence would ordinarily make damages greater and more easily ascertainable, we see no reason in either logic or experience to require the presence of physical violence as a necessary prerequisite to suit under § 1983. Moreover, there has been no finding by any court which would preclude plaintiff from his proof on the issue of physical violence. The Illinois Supreme Court simply found the confession involuntary absent the allegations of violence, and did not find it necessary to reach the issue of physical violence.
      “Accordingly, the order of dismissal is reversed and the cause remanded for trial in accordance with our conclusion that while the plaintiff may not recover damages for his conviction and incarceration, he should be afforded an opportunity to present his proof concerning any harm which he allegedly suffered and which these defendants knew or should have known plaintiff would suffer as a result of the unlawful interrogation and confession.” 466 F.2d at 945.


author: PER CURIAM. McCREE, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lowell Scott FIELDS, Defendant-Appellant.
    No. 74-1085.
    United States Court of Appeals, Sixth Circuit.
    Argued June 17, 1974.
    Decided July 30, 1974.
    McCree, Circuit Judge, filed an opinion concurring in part and dissenting in part.
    Henry E. Hughes, Tackett, Keller, Hughes & Roney, Lexington, Ky., for defendant-appellant.
    Robert M. Murphy, Asst. U. S. Atty., for plaintiff-appellee; Eugene E. Siler, U. S. Atty., Lexington, Ky., on brief.
    Before WEICK, EDWARDS and Mc-CREE, Circuit Judges.
   PER CURIAM.

Fields has appealed from his conviction and sentence for receiving and possessing a shotgun after he had been convicted of a felony, in violation of 18 U.S.C. App. § 1202(a) (1). In his previous trial the jury failed to agree, resulting in a mistrial.

Fields contends that the evidence was insufficient to establish the elements of commerce and possession required by the statute. The proof was to the effect that the shotgun was manufactured in Spain, shipped to a dealer in Harrisburg, Pennsylvania, and was sold to a company in Lexington, Kentucky. The shotgun was purchased by one, Mitchell, who loaned it to his son. The shotgun was stolen from the son, and it turned up in the possession of Fields.

Fields was observed by a state police officer, holding the shotgun in his hands while riding as a passenger in an automobile, and he was arrested.

In our opinion there was sufficient evidence that the weapon had traveled in commerce, and affected commerce. United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971); United States v. Day, 476 F.2d 562 (6th Cir. 1973).

The District Court did not err in refusing to strike from the indictment language which described the nature of the felonies of which Fields had been previously convicted, nor in admitting evidence relative thereto. At his previous trial Fields had stipulated his felony convictions, but made no offer so to stipulate in his second trial.

We find no error in the appointment of counsel by the Court to represent Fields when he had no funds to employ counsel of his own choosing. In our opinion Fields’ claim that he was not adequately represented is not supported by the evidence. Beasley v. United States, 491 F.2d 687 (6th Cir. 1974).

The judgment of conviction is affirmed.

McCREE, Circuit Judge

(concurring in part and dissenting in part).

I respectfully dissent from that part of the court’s opinion that upholds the district court’s refusal to strike from the indictment language describing appellant’s previous felony convictions, apparently because a formal stipulation concerning the existence of these convictions was not offered. Although no such offer was made by defense counsel, whose appointment appellant opposed because he had requested a continuance to permit his retained counsel to conduct the trial, the record makes clear that Fields objected to submitting to the jury a description of his previous convictions. He unmistakenly endeavored to have the existence of his convictions stipulated as they had been in the earlier trial of the case before another judge where the jury was unable to agree:

THE DEFENDANT:
May I approach the Bench, Your Honor?
THE COURT:
Well, only with your attorney and with the United States Attorney.
All right, come up, Gentlemen.
(Reporter’s note: The following proceedings were had at the Bench and out of the hearing of the prospective jury).
THE COURT:
Let the record show the defendant is present at the Bench with his attorney, and the United States Attorney is present.
THE DEFENDANT:
I had a discussion about this when I had another lawyer the last time when we had a hung jury, and I had every intention of appealing, and they never brought that out in court. If it had been appealed I have reason to think I won’t be convicted.
THE COURT:
I don’t understand what you’re talking about.
MR. MURPHY:
The last time this case was tried Judge Rosenstein tried it.
THE COURT:
Did he put these marks on the indictment?
MR. MURPHY:
Evidently he did. The jury was never allowed to have the indictment read to them and never allowed to see it. The Judge made defense counsel and the United States Attorney agree that the defendant had been convicted of a felony. That’s as far as it went. The United States was never allowed to put in what the felony was.
THE COURT:
That’s what Judge Rosenstein did?
MR. MURPHY:
Yes.
THE COURT:
Well, if he had been convicted of some of the counts - say, even though he had been convicted and it was on appeal, it would still be admissible.
MR. SILER:
That’s the Lisle case.
MR. MURPHY:
His reasoning on that also by telling the jury of the offense here would be prejudicial to the defendant.
THE COURT:
Well, I have taken the contrary view, because you have to introduce the record.
Well, you will have to discuss that with your attorney, Mr. Fields.
THE DEFENDANT:
Well, I would like to object to my attorney. I hadn’t seen him until I got here a while ago. I had two attorneys hired for this case.
THE COURT:
Who are they ?
THE DEFENDANT:
I had Reaves and he didn’t show up the other day, and I had Hughes and you wouldn’t give him time to prepare the ease. He wanted you to give him 4 days, and you give this fellow 18 days, and I haven’t seen him any more.

Fields’ attempt to keep the details of his previous felony convictions from the jury preserves for our review the propriety of the district court’s ruling. I would hold, in the exercise of our supervisory powers, that disclosure of information about prior convictions is so unnecessarily prejudicial that it should not be permitted if a defendant is willing to stipulate to their existence. Cf. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). In Spencer, where a state procedure for an habitual criminal prosecution was challenged, the Court, in a five to four decision, rejected the contention that the admission of evidence of a criminal defendant’s prior convictions in the trial of the pending criminal charge was constitutional error because of its prejudicial effect. Nevertheless, five members of the Court, including Justice Stewart who concurred separately, would have barred the admission of such evidence in a case invoking the exercise of the Court’s supervisory powers over criminal procedures in the federal courts. The rationale for adopting this procedure was articulated by former Chief Justice Warren, in dissent. He observed:

Evidence of prior convictions has been forbidden because it jeopardizes the presumption of innocence of the crime currently charged. A jury might punish an accused for being guilty of a previous offense, or feel that incarceration is justified because the accused is a “bad man,” without regard to his guilt of the crime currently charged. Of course it flouts human nature to suppose that a jury would not consider a defendant’s previous trouble with the law in deciding whether he has committed the crime currently charged against him. As Mr. Justice Jackson put it in a famous phrase, “[t]he naive assumption that prejudicial effects can be overcome by instructions to the jury . all practicing lawyers know to be unmitigated fiction.” Krule-witch v. United States, 336 U.S. 440, 453 [69 S.Ct. 716, 723, 93 L.Ed. 790] (concurring opinion) (1949). United States v. Banmiller, 310 F.2d 720, 725 (C.A. 3d Cir. 1962). Mr. Justice Jackson’s assessment has received support from the most ambitious empirical study of jury behavior that has been attempted, see Kalven & Zeisel, The American Jury 127-130, 177-180. Id. at 575, 87 S.Ct. at 659.

Because the same prejudice arises from informing a jury of an accused’s previous convictions in the manner permitted by the district court in this case, I would prohibit such disclosure when an accused is willing, as was Fields, to stipulate to the existence of his prior felony convictions.

Although appellant sought to strike from the indictment reference to his prior convictions, his untutored request should have been treated as an attempt to prevent disclosure to the jury of the offenses described therein. No error was committed by setting forth the prior convictions in the indictment.

Since I have grave doubts that the erroneous disclosure in this case did not have a substantial effect on the jury, particularly in the light of the jury’s inability to agree in the previous trial where this evidence was excluded, Kot-teakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), I would reverse the conviction and remand for a new trial.