author: SPRECHER, Circuit Judge.

text:
    Frank A. ANGLIN, Jr., Petitioner-Appellant, v. Steven JOHNSTON, Parole Executive, United States Board of Parole, et al., Respondents-Appellees.
    No. 74r-1509.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 13, 1974.
    Decided Nov. 1, 1974.
    Certiorari Denied March 3, 1975.
    See 95 S.Ct. 1353.

      ■ Gerald Werksman, Chicago, 111., for petitioner-appellant.
    James R. Thompson, U. S. Atty., Gary L. Starkman and Michael D. Groark, Asst. U. S. Attys., Chicago, 111., for respondents-appellees.
    Before SWYGERT, Chief Judge, FAIRCHILD and SPRECHER, Circuit Judges.
   SPRECHER, Circuit Judge.

This appeal from the denial of a petition for a writ of habeas corpus poses the novel question of whether a pending federal sentence may be suspended in order to allow the prisoner to serve an intervening civil contempt sentence for his refusal, despite immunity, to testify before a grand jury.

I

The petitioner, Frank A. Anglin, Jr., was found guilty by a jury on January 10, 1972 of two counts of theft from an interstate shipment and illegal use of firearms. On February 23, 1972 he was sentenced by Judge McGarr to concurrent sentences of three years and one year and on March 19, 1973, the sentence was modified to be served pursuant to 18 U.S.C. § 4208(a)(2). On March 27, 1973, petitioner began to serve this sentence at the Federal Correctional Institution at Sandstone, Minnesota.

In May, 1973, petitioner was returned to the Northern District of Illinois pursuant to a petition for a writ of habeas corpus ad testificandum requested by the United States Attorney. On June 20, 1973, he was granted immunity and brought before the special 1972 grand jury and asked questions which he refused to answer. On June 20, petitioner was adjudged in contempt of court by Judge Robson and committed to the custody of the United States marshal until such time as he should obey the order. Petitioner was incarcerated in the Cook County, Illinois jail pursuant to the civil contempt order, where he remains at the present time.

On April 17, 1974, petitioner filed his application for writ of habeas corpus seeking an opportunity to appear before the Board of Parole, credit against his criminal sentence for time served pursuant to his contempt commitment, and his return to Sandstone for concurrent service of the two sentences.

Upon the government’s motion, Judge Robson entered an order on May 1, 1974, stating that the court’s “intention was that any time served by Frank A. Anglin, Jr., for civil contempt was not to be counted toward the service of his criminal sentence . . .” and

It is further ordered that while [Anglin] is confined pursuant to this order his criminal sentence shall be and hereby is ordered suspended and held in abeyance.

In the meantime petitioner had been advised by the Board of Parole of the Bureau of Prisons’ Policy Statement 7300.92, issued November 13, 1973, which provides in part:

3. c. If the federal criminal sentence is being served when the civil contempt sentence is ordered, the criminal sentence will be suspended for the duration of the contempt sentence. The criminal sentence will be recorded as inoperative for this period.
(1) The time spent serving the contempt sentence will be inoperative on any other sentence being served. Bureau facilities will be responsible for obtaining inoperative time data from marshals for sentence computation purposes.
-x- * * -x- -x- *
d. Time spent serving civil contempt sentences will not be custody as contemplated by 18 U.S.C. 3568.

On May 31, 1974, Judge McGarr denied the petition for writ of habeas corpus, stating:

To afford the petitioner the relief he requests would be to render Chief Judge Robson’s contempt citation meaningless and inoperative. The “recalcitrant witness” statute, Title 28 U.S.C. § 1826(a) has been upheld under constitutional attack, Stewart v. United States (9th Cir. 1971), 440 F.2d 954, affirmed 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212, rehearing denied 408 U.S. 931, 92 S.Ct. 2478, 33 L.Ed.2d 345, and clearly authorizes the Court to confine a recalcitrant witness as an incentive to compel the testimony sought. The granting of the petitioner’s requests herein would remove the incentive in contravention of congressional intent. The petitioner would suffer no detriment for his refusal to testify and 28 U.S.C. § 1826(a) would have no meaning.

Anglin v. Johnston, 378 F.Supp. 750, 751 (N.D.Ill.1974).

II

. Petitioner’s confinement for civil contempt was authorized by 28 U.S.C. § 1826(a), which is silent as to the effect of such confinement upon pending criminal sentences.

Petitioner has relied principally upon 18 U.S.C. § 3568, which provides in part:

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary . . . for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. As used in this section, the term “offense” means any criminal offense. . . . (Emphasis added.)

The language of section 3568 is unambiguous. Credit shall be given for time spent “in connection with the offense or acts for which sentence was imposed” and “offense” is defined as a “criminal offense.” The confinement for which petitioner seeks credit was imposed in connection with a civil contempt (refusal to testify) and not in connection with the criminal offense “for which sentence was imposed” (theft from interstate shipment and illegal use of firearms). Hence the language of section 3568 does not support petitioner. The parties have not directed us to any pertinent legislative history relative to either section 3568 or 28 U.S.C. § 1826(a) nor have we discovered any which would tend to solve the issue on appeal.

We must look to analogous situations where the sentence for a criminal offense has been held to be or not to be suspended for the duration of an intervening event.

In Anderson v. Corall, 263 U.S. 193, 44 S.Ct. 43, 68 L.Ed. 247 (1923), the Supreme Court held that a paroled prisoner who served a state sentence before his parole was revoked was not entitled to credit for either the time that he was free on parole or while serving the state sentence.

In Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399 (1938), the Court similarly held that prisoners were not entitled to credit for either time spent while free on parole or while serving sentences for the commission of second federal offenses, at the termination of which they resumed serving the balance of the original sentences.

However, the statute providing for the retaking of a parole violator expressly states that “[t]he unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General . . ., and the time the prisoner was on parole shall not diminish the time he was sentenced to serve.” 18 U.S.C. § 4205.

Both Anderson and Zerbst noted that the subject prisoners’ “status and rights were analogous to those of an escaped convict.” Anderson, supra, at 196, 44 S.Ct. at 45; Zerbst, supra at 361, 58 S.Ct. at 873. In Anderson the Court added that “[e] scape from prison interrupts service, and the time elapsing between escape and retaking will not be taken into account or allowed as a part of the term.” 263 U.S. at 196, 44 S.Ct. at 44; see also Theriault v. Peek, 406 F.2d 117 (5th Cir. 1968), cert. denied, 394 U.S. 1021, 89 S.Ct. 1644, 23 L.Ed.2d 47 (1969).

The federal escape statute, (18 U.S.C. § 752), as does the recalcitrant witness statute, (28 U.S.C. § 1826(a)), fixes a penalty for the offense without stating the effect of that penalty upon pending criminal sentences.

When probation is revoked, time spent on probation cannot, in the absence of an express order so providing, be credited on a previously imposed sentence. United States v. Hawkins, 492 F.2d 771 (5th Cir. 1974); Baber v. United States, 368 F.2d 463 (5th Cir. 1966) ; Thomas v. United States, 327 F.2d 795 (10th Cir. 1964); United States v. Guzzi, 275 F.2d 725 (3d Cir. 1960). The refusal to credit probation time against the prison sentence is not double jeopardy. Kaplan v. Hecht, 24 F.2d 664, 665 (2d Cir. 1928). This is true although a prisoner on probation is “not a free man, but . [is] undergoing punishment and restraint in execution of the judgment of conviction. . . . ” Id.

The probation statute, 18 U.S.C. § 3653, unlike the parole statute, is silent as to the effect of probation time on the prison sentence upon revocation of probation, but does provide that “the court may revoke the probation and require [the probationer] to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.” 18 U.S.C. § 3653.

Freedom on bail bond or on one’s own recognizance subsequent to arrest and prior to conviction is not to be credited upon the ultimate sentence even though' under Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973), a person subject to freedom under such conditions is considered “in custody” within the meaning of the federal habeas corpus statute. Cochran v. United States, 489 F.2d 691 (5th Cir. 1974).

Likewise, the period an alleged offender is free pending appeal under Fed.R.App.P., Rule 9 is not to be credited against his ultimate sentence even though the bond is “highly restricted.” Polakoff v. United States, 489 F.2d 727 (5th Cir. 1974).

Both the release on bail (18 U.S.C. §§ 3141-3152) and release pending appeal (Fed.R.App.P., Rule 9) provisions are silent as to the effect of the time spent during such periods upon the ultimate sentence. Like the recalcitrant witness statute, 18 U.S.C. § 3150 applies penalties (for failure to appear) and section 3151 provides additionally that “[n]othing in this chapter shall interfere with or prevent the exercise by any court of the United States of its power to punish for contempt.” 18 U.S.C. § 3151. Despite their silence as to effect oh other sentences, these provisions have been held to have no dimunition effect on such other sentences.

We have already seen that under Anderson and Zerbst, supra, time spent for other federal offenses or time spent in state custody is not to be credited against the sentence for a federal offense. See also Howard v. United States, 420 F.2d 478 (5th Cir. 1970).

The only situation where credit has been given for the serving of time for a different offense is where a state prisoner has been denied release on bail solely because of an outstanding federal de-tainer lodged against him. In that case courts have held that he is in custody “in connection with” the federal offense and entitled to credit against his federal sentence for time spent in state custody under those circumstances. Davis v. Attorney General, 425 F.2d 238 (5th Cir. 1970); Brown v. United States, 489 F.2d 1036 (8th Cir. 1974).

In view of the totality of authority, we conclude that despite the silence of 28 U.S.C. § 1826(a) upon the subject, a prisoner serving a current federal sentence is not entitled to credit for time spent in custody for a civil contempt, unless, of course, the sentencing judge in the case of the contempt expressly makes the contempt confinement concurrent with the prior criminal sentence.

We agree with Judge McGarr’s observation that to permit petitioner to credit the contempt time against the criminal sentence would “remove the incentive to compel the testimony sought” and render the statute nugatory when applied to a prisoner presently incarcerated.

The other prayers in petitioner’s application were dependent upon the crediting argument and fall with it. If credit is not to be given, as we here hold, the Bureau of Prisons’ analysis of procedure to be followed as set forth in Policy Statement 7300.92 is correct.

The denial of the petition for a writ of habeas corpus is affirmed.

Affirmed.

      . 28 U.S.C. § 1826(a) provides:
      Whenever a witness in any proceeding- before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of t'..e court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly- brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information. No period of such confinement shall exceed the life of—
      (1) the court proceeding, or
      (2) the term of the grand jury, including extensions before which such refusal to comply with the court order occurred, but in no event shall such confinement exceed eighteen months.

      . Similarly, upon an application for a writ of habeas corpus in the federal district court by a state prisoner, the Court of Appeals affirmed the denial of the writ, holding that a state sentence is tolled by escape and time does not resume running until the prisoner is returned to the state prison. Phillips v. Dutton, 378 F.2d 898 (5th Cir. 1967).

      . Another variation is that of a prisoner who is granted conditional release at the end of his term less time deducted for good conduct, pursuant to 18 U.S.C. § 4163, then violates the terms of release and is retaken. He is required to serve the remainder of his sentence and the time spent between discharge and retaking is not credited in diminution of his sentence. Garnett v. Blackwell, 423 F.2d 1211 (5th Cir. 1970). However, since 18 U.S.C. § 4164 provides that such a prisoner “shall, upon release, be deemed as if released on parole . . .,” this situation is comparable to that of parole and no different emphasis can be placed upon it.

      . We further conclude that the result would be the same even in the absence of Judge Robson’s May 1, 1974 order, wherein l:e expressly made the contempt sentence consecutive to the criminal sentence by ordering that the criminal sentence be suspended and held in abeyance while the petitioner is confined pursuant to the contempt order.

      . Confinement for refusal to testify after the granting of immunity is “intended to operate in a prospective manner — to coerce, rather than punish. . . . While any imprisonment, of course, has punitive and deterrent effects, it must be viewed as remedial if the court conditions release upon the con-temnor’s willingness to testify.” Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966). Just as the prisoner procures his own escape or voluntarily violates probation or parole, he brings about his own confinement by his continued refusal to answer questions under immunity. He carries the keys for his release from confinement for civil contempt in his own pocket.


source: Caselaw Access Project

author: MULLIGAN, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellant, v. Bernhard FEIN, Appellee.
    No. 1121, Docket 74-1446.
    United States Court of Appeals, Second Circuit.
    Argued July 18, 1974.
    Decided Oct. 15, 1974.
    Paul B. Bergman, Asst. U. S. Atty. (Edward John Boyd, Y, U. S. Atty., for E.D.N.Y., Raymond J. Dearie, Ronald E. DePetris, Asst. U. S. Attys., of counsel), for appellant.
    Victor Rabinowitz, New York City (Rabinowitz, Boudin & Standard, New York City, Michael Krinsky, New York City, of counsel), for appellee.
    Before MULLIGAN and WINTER, Circuit Judges and NEWMAN , District Judge.

       Of the United States Circuit Court of Appeals, Fourth Circuit, sitting by designation.

       Of the United States District Court, District of Connecticut, sitting by designation.

   MULLIGAN, Circuit Judge:

On March 17, 1971, by order of District Judge George Rosling, a grand jury was convened in the United States District Court for the Eastern District of New York. Judge Rosling’s order directed that “pursuant to Rule 6(a) and (g), Federal Rules of Criminal Procedure, a Special Grand Jury be convened . to serve for a period not to exceed eighteen (18) months from the date it is convened . . . .” On or about August 30, 1972, in the 18th month of the grand jury’s life, the Assistant United States Attorney for the Eastern District who was supervising the grand jury’s investigation orally applied to Chief Judge Jacob Mishler for an extension of the term of the grand jury. On August 30, Judge Mishler signed an order submitted to him by the Assistant extending the term of the grand jury for an additional six months upon the authority of 18 U.S.C. § 3331.

On September 26, 1972, nine days after the expiration of the original 18-month life of the grand jury, the jury returned a two-count indictment against the appellee, Bernhard Fein, charging him with the corrupt receipt of a bribe in violation of 18 U.S.C. § 201(c)(1), and with making a false declaration before a federal grand jury in violation of 18 U.S.C. § 1623. The second count charged that Fein made a false declaration before the grand jury on September 19, two days after the life of the grand jury would have expired pursuant to Judge Rosling’s initial order. Other indictments involving other individuals were subsequently returned. Following a second oral application by the Government, Chief Judge Mishler, on February 2, 1973, ordered the term of the March 17, 1971 grand jury extended to September 17, 1973 for the purpose of completing the investigation. This order was also made by authority of 18 U.S.C. § 3331. The grand jury was finally dissolved on September 17, 1973.

On December 20, 1973, appellee Fein moved for an order pursuant to Fed.R. Crim.P. 12 dismissing the indictment on the ground that the indictment had been returned after the lawful life of the grand jury had expired and was therefore invalid. Fein contended that the grand jury was convened pursuant to Rule 6(g), which provides that a “grand jury shall serve until discharged by the court but no grand jury may serve more than 18 months.” Since the indictment against him had been returned after the 18-month period had expired, Fein argued that the grand jury did not have the authority to indict him. Fein further urged that the extensions made by Chief Judge Mishler under 18 U.S.C. § 3331 were ineffective since that section applies only to organized crime grand juries and not grand juries convened pursuant to Rule 6, which does not provide for any extensions. In a memorandum and order dated January 29, 1974, Judge John F. Dooling, Jr., dismissed the indictment upon the grounds urged by Fein. 370 F.Supp. 466 (E.D.N.Y.). A motion for reargument was denied on February 13, 1974. The Government appealed pursuant to 18 U.S.C. § 3731.

We affirm.

1. THE GRAND JURY — CREATURE OF STATUTE OR OF THE COURT?

Since there is no statutory authority for the extension of a Rule 6 grand jury beyond the 18-month period provided therein, the Government has necessarily taken the position that the grand jury is essentially a “creature of the court,” that it is, in effect, an arm or adjunct of the district court and that the district court has implied power to extend its term even absent legislative provision. Judge Dooling decided that the grand jury is a “creature of statute” (370 F.Supp. at 467-469), relying on In re Mills, 135 U.S. 263, 10 S.Ct. 762, 34 L.Ed. 107 (1890). In Mills, Mr. Justice Harlan, writing for an unanimous Court, stated:

A grand jury, by which presentments or indictments may be made for offences against the United States is a creature of statute. It cannot be impanelled by a court of the United States by virtue simply of its organization as a judicial tribunal.

135 U.S. at 267, 10 S.Ct. at 763.

The Government, on the other hand, argues that the powers and provenance of a grand jury were correctly described by Chief Justice Marshall in United States v. Hill, 26 Fed.Cas. p. 315 (No. 15,364) (C.C.Ya.1809). Sitting as a Circuit Justice, Chief Justice Marshall stated:

It has been justly observed, that no act of congress directs grand juries, or defines their powers. By what authority, then, are they summoned, and whence do they derive their powers? The answer is, that the laws of the United States have erected courts which are invested with criminal jurisdiction. This jurisdiction they are bound to exercise, and it can only be exercised through the instrumentality of grand juries. They are, therefore, given by a necessary and indispensable implication. But, how far is this implication necessary and indispensable? The answer is obvious. Its necessity is co-extensive with that jurisdiction to which it is essential. Grand juries are accessaries to the criminal jurisdiction of a court, and they have power to act, and are bound to act, so far as they can aid that jurisdiction. Thus far, the power is implied, and is as legitimate as if expressly given.

26 Fed.Cas. at 317.

The language in Mills is not necessarily inconsistent with the principle espoused by Mr. Justice Marshall in Hill. The Hill opinion was written in 1809, long before Congress had enacted any legislation regulating the powers or the tenure of grand juries. Congress had simply given federal courts jurisdiction over crimes committed against the United States, and the fifth amendment precluded any proceeding against an individual for any capital or infamous crime except upon the presentment or indictment of a grand jury. It was in this context that Mr. Justice Marshall, in the absence of any regulatory statute, found that grand juries were, by implication, necessary auxiliaries and accessories in aid of the jurisdiction of the federal courts. But where Congress has since enacted statutes and courts have adopted rules regulating the power of federal courts over grand juries, the exercise of judicial discretion arising by necessary implication is effectively precluded. Therefore, the question before this court requires, not a consideration of the power of the courts over grand juries in a legislative vacuum, but rather a construction of the relevant rules and statutory enactments governing the creation and the life span of the grand jury, an issue not specifically before either the Mills or Hill courts.

II. THE HISTORY AND PURPOSE OF RULE 6(g)

Rule 6(g) provides that no grand jury shall serve more than 18 months. The United States argues that the continuance of the grand jury beyond that period by judicial order, even though not authorized by statute, is a mere technical irregularity which does not prevent the jury from functioning as a de facto grand jury, and does not preclude the return of a true bill. There are a number of cases which hold that technical imperfections or irregularities in grand jury proceedings which are not prejudicial to the defendant do not effect the validity of an indictment. A review of these cases, however, reveals that none involved more than a peripheral departure from statutory procedures. We have found no authority which has upheld the validity of an indictment returned by a grand jury whose life had terminated under the clear language of the governing rule. This defect, it seems to us, goes to the very existence of the grand jury itself and is not one which can be properly characterized as merely formal or accidental. It is therefore fatal to the indictments handed up by the jury. A review of the history of grand jury tenure provisions confirms the position taken below and here affirmed.

Prior to the enactment of a statute by Congress, the life of the grand jury was deemed to end with the term of the court, since all judicial power terminated with the completion of the term. Bronson v. Schulten, 104 U.S. 410, 415, 26 L.Ed. 797 (1881). It was also understood that a jury not impaneled in the term during which the indictment was returned was null and void, United States v. Gale, 109 U.S. 65, 71, 3 S.Ct. 1, 27 L. Ed. 857 (1883), and presumably the indictments returned by such a panel were without effect.

In United States v. Rockefeller, 221 F. 462 (S.D.N.Y.1914), the defendants argued that the indictments returned against them were invalid because the grand jury, impaneled at the September term, sat until the end of the October term. The district court, which held monthly terms, had signed an order extending the life of the grand jury until the end of the October term. Congress, however, had by that point enacted sections 8 and 284 of the Judicial Code. Section 8 provided:

When the trial or hearing of any cause, civil or criminal, in a district court has been commenced and is in progress before a jury or the court, it shall not be stayed or discontinued by the arrival of the time fixed by law for another session of said court; but the court may proceed therein and bring it to a conclusion in the same manner and with the same effect as if another stated term of the court had not intervened.

Section 284, in pertinent part, provided that the “court may in term order a grand jury to be summoned at such time, and to serve such time as it may-direct, whenever, in its judgment, it may be proper to do so.” In Rockefeller, the district court upheld the indictment by reason of the extension orders which the two sections, read in conjunction, were construed to authorize. A proceeding before a grand jury had been held to be a “case” or “cause” and thus within section 8. Moreover, the court continued:

The apparent purpose of this legislation was to provide a way in which a grand jury, with the permission of the court, may complete and conclude any investigation which it has actually commenced. In a district like this one, having monthly terms of court, it must frequently happen that a grand jury will not be able to conclude its work upon a long and complicated case before the expiration of one term and the commencement of another. If, under such circumstances, a grand jury cannot be permitted to finish its labors, there will follow much unnecessary expense, many unfortunate delays, frequent and severe hardships for the accused, and, sometimes, a complete failure of justice. The statute plainly provides a sure and simple means of avoiding these and other serious consequences.

221 F. at 466.

In Elwell v. United States, 275 F. 775 (7th Cir.), cert. denied, 257 U.S. 647, 42 S.Ct. 56, 66 L.Ed. 415 (1921), the appellant Elwell had refused to testify before a grand jury as ordered by the district court; he argued that the term for which the grand jury had been impaneled had expired and therefore the grand jury had ceased to exist. On appeal from a judgment of contempt, the Seventh Circuit stated that the grand jury, convened in December, 1919, was admittedly a legal grand jury during the December term, and that appellant’s motion “show[ed] a de facto grand jury on March 15, 1920,” the date on which El-well refused to answer the grand jury’s questions. The court, after reciting the relevant portion of section 284 of the Judicial Code, said:

An order of the District Court entered January 31, 1920, showed unfinished business before the grand jury, and expressly continued its existence to finish business then before it. See United States v. Rockefeller, 221 F. at page 466 .... There is some claim that the formal order continuing the jury is not properly shown. In any event the court that originally organized it was treating it as a bona fide grand jury, and it was doing the business ordered by the court.

275 F. at 777-778.

Despite the Rockefeller and Elwell decisions, the Department of Justice had misgivings that the rather vague language of section 284 was intended to give district judges the power to extend the term of the grand jury. See United States v. Malone, 18 F.Supp. 865 (N.D.Ill.1937), aff’d, 94 F.2d 281 (7th Cir.), cert. denied, 304 U.S. 562, 58 S.Ct. 944, 82 L.Ed. 1529 (1938). Accordingly, the Attorney General recommended to Congress that legislation be enacted which would expressly authorize courts to make orders permitting grand juries to continue beyond the term for which they were impaneled. Eventually, in 1931 Congress enacted the bill proposed by the Attorney General, Act of Feb. 25, 1931, ch. 297, 46 Stat. 1417, 28 U.S.C. § 421, which provided in relevant part:

And said court may in term order a grand jury to be summoned at such time, and to serve such time as it may direct, whenever, in its judgment, it may be proper to do so. And the district judge or the senior district judge, as the case may be, may, upon request of the district attorney or of the grand jury or on his own motion, by order authorize any grand jury to continue to sit during the term succeeding the term at which such request is made, solely to finish investigations begun but not finished by such grand jury: Provided, however, That no grand jury shall be permitted to sit in all during more than three terms.

The legislative history sheds light upon the intentions of Congress in imposing a three-term limit upon the life of the grand jury. Section 421 was enacted to give to district courts an explicit power which the Justice Department did not believe them to have under the prior statute. The courts were granted the power to extend grand juries, but, at the same time, Congress specifically denied this power after three terms of court had expired. Even assuming a prior implied power to extend, it is quite clear that the cut-off fixed by Congress eliminated any possibility of inherent judicial authority to grant further extensions.

This view is confirmed by the subsequent history of the statute. The Department of Justice grew dissatisfied with the fact that the limitation of the life of grand juries was stated by reference to terms of court, which varied from district to district. The Department noted that grand juries often had to abandon investigations because the limitation had been reached, thus requiring re-presentation of evidence to a new grand jury. Since some investigations were being hampered by the shortness of some of the varying terms of court, the Department desired a uniform limitation upon the life of the grand jury. This position was presented to Congress after a grand jury in the Southern District of New York had been forced to abandon an investigation because of the three-term limitation. The grand jury wrote a letter expressing its distaste for the effect the limitation worked on that investigation, and it drafted proposed legislation to permit a court to extend the life of a grand jury without any restriction so as to allow the jury to complete a pending investigation. H.R.Rep. No. 1747, 76th Cong., 3d Sess. 2-4 (1940).

The Justice Department rejected the proposal for the existence of a grand jury limited only by the length of the investigation. Instead, it proposed a uniform 18-month limitation upon the grand jury’s life, which the Attorney General deemed sufficient. The Department recognized, however, that if the 18-month period should prove to be insufficient in any particular case, the same result would occur as distressed the New York grand jury. Ii.R.Rep.No. 1747, supra, at 4 (letter of Attorney General Jackson). The Congress declined to follow the New York grand jury’s suggestion of no fixed limitation and enacted into law as an amendment to section 421 the 18-month limitation recommended by the Justice Department. Act of April 17, 1940, ch. 101, 54 Stat. 110.

In a number of cases decided after the enactment of 28 U.S.C. § 421, defendants objected to indictments on the ground that they were returned after the expiration of the term of court in which the grand jury was impaneled. In each case, the court disposed of the objection, not by relying upon any implied power, but by reference to the terms of the statute, Stillman v. United States, 177 F.2d 607, 611 n.2 (9th Cir. 1949); United States v. Parker, 103 F.2d 857, 859-860 (3d Cir.), cert. denied, 307 U.S. 642, 59 S.Ct. 1044, 83 L.Ed. 1522 (1939); United States v. Foote, 42 F.Supp. 717, 719 (D.Del.1942); United States v. Central Supply Ass’n, 37 F.Supp. 890, 891-892 (N.D.Ohio 1941); United States v. Borden Co., 28 F.Supp. 177, 182 (N.D.Ill.), rev’d in part on other grounds, 308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181 (1939). In United States v. Enoch L. Johnson, No. 384c (D.N.J. June 19, 1941), discussed in United States v. Perlstein, 39 F.Supp. 965, 970 (D.N.J.1941), aff’d, 126 F.2d 789 (3d Cir.) (en banc), cert. denied, 316 U.S. 678, 62 S.Ct. 1106, 86 L.Ed. 1752 (1942), a grand jury had returned an indictment beyond the term for which it had been extended. The court quashed the indictment because “the grand jury was without power to find the indictment .” under section 421. Section 421 also came before the Supreme Court in an important decision upon which the Government heavily relies, United States v. Johnson, 319 U.S. 503, 63 S.Ct. 1233, 87 L.Ed. 1546 (1943), which we have previously noted. See footnote 5.

In that case, the Seventh Circuit reversed a number of convictions because the indictments had been returned by an invalid grand jury. 123 F.2d 111 (1941). Section 421 allowed a grand jury to be extended into a succeeding term by order of a court, but the jury could only consider during the period of the extension matters which it had begun investigating in the initial term; that is, it could not begin new investigations in .the continued term. The court construed the order of extension in issue as permitting the initiation during the new term of investigations not begun during the initial term; it therefore held that the indictments were void because the grand jury, improperly extended, was not legally constituted. It based its decision on the proposition that grand juries are creatures of statute and have no existence except that which is given to them by statute.

On appeal, the Supreme Court, by Mr. Justice Frankfurter, rejected the construction which the circuit court had placed upon the order of extension, finding, as had the dissenting judge below, that the language of the order did not authorize the grand jury to commence during the extension investigations not initiated during the original term. 319 U.S. at 508-510, 63 S.Ct. 1233.

The Government argues that Johnson only stands for the proposition that grand juries may not be extended to undertake investigations not previously begun, and that the Supreme Court did not conclude that Congress, in imposing limitations upon the life of the grand jury, intended to affect the validity of indictments returned by a jury whose life had expired. We cannot agree. In our view, the fair reading of the Court’s opinion in Johnson is that the Court accepted the conclusion of all of the circuit judges below that an indictment returned by a grand jury sitting beyond its legally authorized time is a nullity. This acceptance is reflected throughout the opinion and is also made explicit. Referring to the disputed order of extension of the district court, Justice Frankfurter stated: “This is the order which gives rise to the controversy, for upon its legality depends the validity of the indictment thereafter returned by the grand jury." 319 U.S. at 508, 63 S.Ct. at 1236 (emphasis added). That is, if the extension order was not legal, the grand jury, although it functioned and was treated as a grand jury, was not properly in existence and the indictments returned by it were invalid.

After the Johnson ease was decided, the Advisory Committee on the Rules of Criminal Procedure presented a preliminary draft of the Rules to the Supreme Court for comment. The Court suggested to the Committee that it consider modifications designed to avoid the complexities, encountered in Johnson, of determining what matters an extended grand jury may consider. Orfield, The Federal Grand Jury, 22 F.R.D. 343, 348 (1959). The Committee then drafted present Rule 6(g), which abolished limitations referenced to terms of court, as found in the repealed section 421. The abolition of the concomitant restrictions on the matters the grand jury could begin to investigate in an extended term was expressly designed to avoid further difficulties of the type presented in Johnson. Notes of the Advisory Committee on the Rules, 18 U.S.C.A. Fed.R. Crim.P. 6, at 235. The Committee did not intend to alter the view that compliance with the statutory time limitations would determine the validity of indictments. Judge Alexander Holtzoff, then Secretary to the Committee, wrote that the restriction placed by section 421 on the activities of the grand jury in an extended term to investigations commenced in the initial term “gives rise to difficult questions in respect to validity of indictments found during an extended period of service of the grand jury . . . . The [new] rule would entirely eliminate controversies of this nature . . . . ” Holtzoff, Reform of Federal Criminal Procedure, 12 Geo.Wash.L.Rev. 119, 134-35 (1944).

Recently, Congress has had occasion to reaffirm the view we have taken of its intention with regard to Rule 6(g). In late 1973, the Attorney General sent to the Congress a proposed bill designed to extend the life of the June 5, 1972 grand jury of the District Court for the District of Columbia, the so-called “Watergate” grand jury, The Attorney General, in a letter accompanying the bill, stated that the grand jury under “F.R. Crim.P.Rule 6(g) . . . cannot continue more than 18 months without a statutory extension.” He continued:

The present law does not permit judicial extension of the life of a general grand jury. I recognize that statutory extensions have usually been discouraged, but the present ease seems sufficiently extraordinary to require an exception .... Furthermore, analogous extensions for three 6-month periods are permitted under the Organized Crime Control Act of 1970, 18 U.S.C. 3331-3334, when a special grand jury has been empaneled and the usual 18-month period proves insufficient for it to complete its investigation.

H.R.Rep. No. 93-618, 93d Cong., 1st Sess. 3-4 (1973).

Congress enacted the bill, but specified that “[i]n no event shall the term of the grand jury extend beyond December 4, 1974,” Act of Nov. 30, 1973, Pub.L. No. 93-172, 87 Stat. 691, on the representation of the Justice Department that its work would be completed by that date.

The Justice Department recognized that the work of the original grand jury would have to come to an end since the 18-month limit was about to be reached and no extensions were possible. Accordingly, it sought the extraordinary remedy of a special statutory extension, and Congress embarked on the cumbersome process necessary to pass a bill in order to extend the life of the grand jury. This effort lends weight to the argument that a grand jury ceases to exist after the 18-month period has expired and that no judicial extensions are possible except by the extraordinary remedy of a special congressional enactment.

In light of the statutory history and the cases construing antecedent legislation, we can only conclude that the Congress, by imposing restrictions on the life of the grand jury, clearly intended that indictments filed thereafter are void. What other purpose could there be in establishing the limitation if the grand jury were to be permitted to continue its business despite its statutorily mandated demise? We assume that Congress determined that laymen from the vicinage, traditionally acting as a screening device to protect their fellow citizens from unwarranted criminal charges by over-eager prosecutors (see Kaufman, The Grand Jury — Its Role and Its Powers, 17 F.R.D. 331 (1955)), might by dint of longer service become themselves arms of the state instead of representatives of the citizenry. See 27 Fordham L.Rev. 129, 131 (1958). We have no reason to become enmeshed in the long-continuing debate or add fuel to the seemingly endless controversy as to whether the grand jury constitutes a sword or a shield. See generally materials cited in L. Hall, Y. Kamisar, W. LaFave & J. Israel, Modern Criminal Procedure 790-838 (3d ed. 1969). By accepting Rule 6(g), Congress provided that this grand jury had to be terminated at the end of 18 months and made no provision for its extension. We cannot interpret this as a mere direction without any practical effect. Aside from the clarity of the Rule, its history and prior litigation compel the determination made below and here affirmed.

III.- THE ORGANIZED CRIME CONTROL ACT OF 1970

The Government finally argues that, although the grand jury in this case was admittedly convened pursuant to Rule 6(g), which gave it a limited life of 18 months with no provision for extension, it was nonetheless properly continued by Judge Mishler in reliance upon 18 U.S.C. § 3331. It is contended that that section, which was part of Title I of the Organized Crime Control Act of 1970 was properly utilized here since the grand jury did become involved in an extended investigation of organized criminal activity.

Section 3331(a) provides that “[i]n addition to such other grand juries as shall be called from time to time,” a special grand jury shall be called by the district court at least once in every 18-month period in districts having more than four million inhabitants or in districts in which a high Justice Department official certifies to the court that such a grand jury is necessary.- The special grand jury is to serve for 18 months, but the district court may extend it for additional six-month terms if necessary, but no “special grand jury term so extended shall exceed thirty-six months . . ..”

We note at the outset that there is nothing in the statute or in its legislative history which would support the Government’s position that a Rule 6 grand jury is somehow converted to an organized crime grand jury merely because it proceeds to investigate activities which could be characterized as organized crime. See United States v. Carter, 493 F.2d 704, 708 & n.2 (2d Cir. 1974). On the contrary, the statute itself provides that the Federal Rules applicable to regular grand juries are applicable to special grand juries “to the extent not inconsistent with sections 3331, 3332, or 3333 of this chapter.” 18 U.S.C. § 3334. Since Rule 6(g) is inconsistent with section 3331 as to time limitations, it would seem clear that the net result is that each type of grand jury has its own duration fixed by its own statute. Not only is there no support in the statute for engrafting one time limitation upon another, but the confusion which such a position would generate would be typical of that which we have recounted in the history of prior statutes with blurred or non-existent termination provisions. Our discussion of congressional action in extending the life of the Watergate grand jury is also relevant on this question. Both Congress and the Department of Justice were aware of the extension provisions of section 3331. The letter of the Attorney General to the Congress accompanying the proposed legislation referred specifically to that section as permitting extensions which were “analogous” to that sought for the Watergate grand jury. There was no argument that section 3331 was applicable to the Rule 6 grand jury, and, if it had been, the extraordinary measure of enacting a special statute to prolong the existence of the Watergate grand jury could have been avoided.

Moreover, application of the extension provision of section 3331 to a Rule 6 grand jury could produce unequal results across the country. Section 3331 applies only to certain districts, such as those having four million inhabitants. Rule 6 applies to all districts. Thus, if the argument of the' Government were to prevail, Rule 6 grand juries could be extended in certain large districts but not in smaller ones. Congress could scarcely have intended such anomalous results.

It seems evident from the face of the statute, that it was the intent of Congress in enacting the Organized Crime Control Act to provide for a distinctive type of grand jury. The special grand juries created by the Act are limited to districts in which organized crime was deemed to be most prevalent and there is a limit of one such jury to a district unless the district judge finds that the volume of business there requires an additional grand jury, in which case he may order one pursuant to section 3332(b). These special juries are “in addition to” regular juries. In section 3333, there are special provisions for the issuance of reports by the juries. In the event a district judge fails to extend the jury or discharges it before it has determined that its business is completed, the jury is permitted to appeal to the Chief Judge of the Circuit for an order of continuance under section 3331(b). These features are unique to the special grand jury created by the Act.

The legislative history of the Act also demonstrates that Congress intended, not to modify existing procedures for the summoning and functioning of Rule 6 grand juries, but rather to provide for a distinct, new grand jury in response to a new problem. The bill as originally introduced, S.30, applied to all grand juries so as to provide for their extension beyond 18 months. Hearings on S.30 Before the Subcomm. on Criminal Laws and Procedures of the Senate Comm, on the Judiciary, 91st Cong., 1st Sess. 7 (1969). However, after much criticism, directed mostly to other portions of the proposal, the bill was amended and passed in its present form. Act of Oct. 15, 1970, Pub.L. No. 91-452, Title I, 84 Stat. 923'. We find nothing in the history of the Act to support the Government’s argument on this phase of the case.

IV. CONCLUSION

In sum, the factors discussed are persuasive that Rule 6(g) imposes a limitation upon the life of a grand jury which, if exceeded, renders the indictments returned after the 18-month period invalid. The extensions permitted under the Organized Crime Control Act are not available here and, in view of the clear language of Rule 6(g), there is no inherent or implied judicial power permitting continuances.

We are, of course, fully cognizant of the fact that our decision here constitutes much more than an academic discussion and that other indictments will be dismissed on the basis of this opinion. It may well be that criminal proceedings which would be in the public interest will be frustrated and that those who might be found guilty will escape trial and conviction. However, it is fundamental to our jurisprudence that the rule of law must prevail and that the prosecution of those suspected of crime must itself proceed according to the law, and not otherwise.

Affirmed.

      . During the second extension of the grand jury, it returned an indictment in the case of United States v. McDonnell and Fetell, 73 Cr. 562 (E.D.N.Y.). Thereafter and prior to the motion by Fein, Fetell moved for dismissal of the indictment on the same ground later urged by Fein. The motion was argued at a hearing before Judge Jack B. Weinstein, who denied it at the conclusion of the hearing. In his opinion below, Judge Dooling correctly characterized Judge Weinstein’s ruling as “provisional” and declined to follow it because he had been presented with the complete legislative history relevant to the matter, which Judge Weinstein liad' not seen at the time of the hearing on Fe-tell’s motion. 370 F.Supp. at 467. The Fe-tell motion never resulted in a final decision by Judge Weinstein since the prosecution was otherwise terminated.
      Apparently, there are now outstanding ten indictments which were handed up by the same jury which indicted appellee, which arose out of the same investigation and which are still subject to a motion to dismiss. In four of these, defendants have moved for the same relief which appellee obtained below.

      . The specific question before Chief Justice Marshall in Hill was whether or not an order could be made to certify a presentment to the district court. The issue raised in Mills was whether the crimes for which the petitioner had been imprisoned were crimes over which a territorial court had exclusive jurisdiction or crimes over which the district court in which the charges had been brought had jurisdiction.

      . E. g., Breese v. United States, 226 U.S. 1, 11, 33 S.Ct. 1, 57 L.Ed. 97 (1912) (indictment voted by grand jury not presented to presiding judge in presence of grand jurors) ; Agnew v. United States, 165 U.S. 36, 44, 17 S.Ct. 235, 41 L.Ed. 624 (1897) (selection of a group of jurors necessary to complete the grand jury panel made solely from residents of one county) ; Beatrice Foods Co. v. United States, 312 F.2d 29, 37 (8th Cir.) (Blackmun, J.), cert. denied, 373 U.S. 904, 83 S.Ct. 1289, 10 L.Ed.2d 199 (1963) (questionnaires sent to prospective grand jurors whose names were obtained by the sponsor system challenged as being insufficient to insure that candidates were qualified) ; Young v. United States, 94 U.S.App. D.C. 54, 212 F.2d 236, 238-239 & n. 5, cert. denied, 347 U.S. 1015, 74 S.Ct. 870, 98 L.Ed. 1137 (1954) (exclusion from list of prospective grand jurors for District of Columbia of all persons who voted outside the District) ; Nolan v. United States, 163 F.2d 768, 769 (8th Cir. 1947), cert. denied, 333 U.S. 846, 68 S.Ct. 649, 92 L.Ed. 1130 (1948) (failure of judge to sign his order directing the summoning of a grand jury) ; Romney v. United States, 83 U.S.App.D.C. 150, 167 F.2d 521, 527, cert. denied, 334 U.S. 847, 68 S.Ct. 1512, 92 L.Ed. 1771 (1948) (permitting all prospective grand jurors who desired to be excused to be relieved from serving on the jury).

      . The predecessors of section 284 did not impose any time limitations on the tenure of a grand jury. In 1846, Congress altered a previous enactment which permitted a grand jury to be summoned only by order of the court (Act of May 20, 1826, ch. 136, 4 Stat. 188) by adding a provision allowing courts in term to order the impaneling of a grand jury whenever it was considered appropriate to do so. Act of Aug. 8, 1846, cli. 98, § 3, 9 Stat. 72. Section 810 of the Revised Statutes authorized a court to impanel a grand jury “at such time, and to serve sucli time as it may direct, whenever, in its judgment, it may be proper to do so.” Revised Statutes § 810, at 151 (2d ed. 1878). The immediate predecessor of section 284 contained the same language as that found in section 810. Act of March 28, 1910, ch. 134, 36 Stat. 267.

      . Tie Government, while recognizing that Rockefeller and Elwell relied upon statutory authority to continue the life of the grand jury to another term, nonetheless argues that the Seventh Circuit in Elwell found that the statute was merely confirmatory of an implied power which the courts always possessed, and this, the Government contends, explains the court’s reference to the “de facto” grand jury. Whatever force this interpretation might have had is destroyed by the later holding of that circuit in United States v. Johnson, 123 F.2d 111, 120 (7th Cir. 1941), wherein the court, referring to Elwell, held:
      While we are loath to repudiate a holding of our own court, we are of the view that there is no such thing as a de facto Grand Jury in a Federal Court .... A United States District Court . . . is of limited jurisdiction with such powers only as are expressly conferred. A Grand Jury is a “creature of statute.” In re Mills, Petitioner, supra.
      The reversal of Johnson by the Supreme Court, 319 U.S. 503, 63 S.Ct. 1233, 87 L.Ed. 1546 (1943), as we shall develop hereafter, did not affect this position.

      . The position of the Department of Justice was explained in a letter from Oliver E. Pagan, Special Assistant to the Attorney General, which was transmitted with the proposed bill to the Chairman of the Senate Judiciary Committee. Mr. Pagan stated therein :
      The first bill proposes to amend section 284 of the Judicial Code by the insertion of a few lines which are indicated in pencil as being new matter. The thing sought to be accomplished by this additional matter is authority for grand juries to hold over the term. In all the large cities, where the trust cases are usually prosecuted, criminal terms last only one month, as a rule, and investigation of trust-law violations can very seldom be completed during one term. Although in one or two districts the practice is followed of “continuing the term” by order of court, every reasonable argument and analogy would seem to be against the power of a court’s extending a term fixed by law, and to call for legislation definitely permitting a grand jury to hold over the term for which it is empaneled. At the common law all business ended with the term. Compare Bronson v. Schulten, 104 U.S. 410, 415, 26 L.Ed. 797. Section 8 of the Judicial Code permits a petit jury to hold over the term to finish the trial of a case, and there should be similar legislation as to grand juries.
      To construe section 284, as amended a few years ago to permit the convening of a “second” grand jury, so as to permit a grand jury to hold over a term, as was done in United States v. Kockefeller (221 F. 462, 466), permits the convening of an indefinite number of grand juries, each sitting indefinitely so far as time is concerned. Notwithstanding this decision, the department fears to risk any important cases, especially one wherein the statute of limitations will run before the question can be settled by the Supreme Court, by detaining the grand jury beyond the term; and so the decision is of no practical value. All doubts upon this subject should be removed by legislation of some kind in the nature of the bill submitted herewith.

      . Tlie Attorney General suggested that it might he wise for Congress to provide “that a stenographic record of testimony heard by one grand jury may be read in evidence before a subsequent grand jury . . . H.R.Rep.No.1747, supra, at 4.

      . The Government also relies upon Boche v. Evaporated Milk Ass’n, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed, 1124 (1943), decided only a month before Johnson. In Roche, a district court had ordered that a grand jury be extended to the following term only to continue investigations initiated but not completed during the critical term. The defendants complained that the inquiry into the offenses charged in the ensuing indictment had only commenced during the extended term of the grand jury. The district court struck the plea of abatement based on this point, and, on a writ of mandamus, the circuit court concluded that, if the defendant could establish this argument at trial, the grand jury indictment was invalid. 130 F.2d 843 (9th Cir. 1942) (en banc). The Supreme Court reversed on the ground that mandamus was an improper remedy, since the district court, even if erroneous, did not abuse its judicial power. Appeal would lie from a final judgment, the Court said, and mandamus thwarted the congressional policy against piecemeal appeals. 319 U.S. at 30, 63 S.Ct. 938. The Government relies on language in Roche which indicated that the grand jury had been validly extended and that the objection that the subject matter considered was new and not continuing was at most an irregularity, but not a jurisdictional defect. 319 U.S. at 26-27, 63 S.Ct. 938. We see no solace for the Government in Roche. There, the extension order was legal and pursuant to the statutory language, even though the grand jury may have exceeded its powers. In Johnson, on the other hand, the extension order, as read by the circuit court, did not comply with the statute, the grand jury was therefore not properly extended, and any indictment would have been a nullity.

      . Although Rule 6 was ¿rafted by the Committee, which was appointed by the Supreme Court pursuant to the Court’s power to prescribe rules of procedure in criminal cases, tlie Rule could not take effect until it was submitted to Congress and a period of time passed without any adverse action by that body. See 18 U.S.C. § 3771.

      . The Government took the position in the district court that it was possible to construe Judge Rosling’s order convening the grand jury in this case as a direction to convene an organized crime grand jury under section 3331. For a number of reasons which it is unnecessary to recite, this position is untenable. The Government now concedes that the jury which indicted appel-lee was a Rule 6 grand jury. Brief for the Appellant at 37.

      . Congress did not attempt to limit the applicability of Title I of the Act by specifically defining the type of criminal conduct which the special grand jury would be authorized to investigate, apparently because of the difficulty in formulating a definition of organized crime. See Hearings on S. 30, supra, at 346-47. However, as we have indicated, Congress did impose restrictions upon the special grand jury in other ways, thus creating a unique body.


author: KILEY, Senior Circuit Judge. STEVENS, Circuit Judge

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CARAVELLE WOOD PRODUCTS, INC., Respondent.
    No. 73-1260.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 22, 1974.
    Decided Oct. 15, 1974.
    Rehearing En Banc Denied Dec. 23, 1974.
    See 510 F.2d 257.
    Stevens, Circuit Judge, concurred and filed opinion.

      Elliott Moore, Acting Asst. Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, N. L. R. B., Washington, D. C., for petitioner.
    Willis S. Ryza, Chicago, 111., for respondent.
    Before CASTLE and KILEY, Senior Circuit Judges, and STEVENS, Circuit Judge.
   KILEY, Senior Circuit Judge.

This is the second petition filed by the Labor Board in this proceeding to enforce its order, based upon a summary judgment of the Administrative Law Judge, that Caravelle violated §§ 8(a)(1) and (5) of the National Labor Relations Act (Act) by refusing to bargain with the Union. The Board originally ordered Caravelle to bargain; the first petition followed; and this court denied enforcement and remanded for further proceedings. 466 F.2d 675 (1972) (Caravelle I). We now order enforcement of the Board’s present order.

The Union was certified after a representation election, prior to which eight relatives of Caravelle stockholders were excluded from the bargaining unit- — the production and maintenance employees. The election resulted in 35 votes cast for, and 32 votes against, the Union. Thirteen votes, including those cast by six of the excluded relatives, were challenged, and the Regional Director sustained challenges to the six relatives’ votes. The Union was then certified as the unit’s bargaining agent and subsequently requested recognition and bargaining.

Caravelle refused to bargain, and the Union filed unfair labor practice charges. The General Counsel’s complaint followed. In its answer to the complaint, Caravelle denied that the Union’s certification was valid and asserted that the Regional Director erred in not counting the six ballots. After a hearing, the Administrative Law Judge decided in favor of the General Counsel and against Caravelle’s assertion with respect to the votes. He found Caravelle guilty of violating §§ 8(a)(1) and (5) of the Act. The Board adopted the Judge’s decision and ordered Caravelle to bargain. The enforcement petition in Caravelle I followed.

This court in Caravelle I denied enforcement because, in sustaining the Regional Director’s refusal to count the six votes, the Board relied “entirely” upon the fact of the family relationship between the six employees and principal owners of the stock who were also directors and officers of the corporation. The court remanded the proceeding with guidelines for the Board’s consideration in a redetermination of the eligibility of the six voters.

On remand the Board found that Car-avelle

is a closely held corporation dominated by the Paradiso family whose members together own 70% of the stock, serve as directors, occupy most of-the key offices of the Company, are active in its operation, and hold most of the supervisory positions.

It found further that employees Inez and Irene Paradiso, wives of stockholders and department heads Donald and Nick Paradiso, respectively, “presumably” lived with their husbands. The Board “presumed” also that employees Raymond and Dennis Paradiso, sons of Nick Paradiso, lived at home and, because they were students, were to some extent economically dependent upon him. No similar finding was made with respect to employees Paul Paradiso, son of vice-president Louis Paradiso, or Donald W. Kloss, son of Donald Kloss, a Cara-velle departmental supervisor.

Caravelle had unsuccessfully contended on remand that the Board should apply the “special status” test in its redetermination. 6The Board concluded instead that the six relatives lacked sufficient “community of interest” with the other employees in the bargaining unit, and that the refusal to count their votes was proper. It confirmed its original bargaining order, and the petition to enforce now before us followed.

I.

The principal issue presented is: Did the Board abuse its discretion under § 9(b) of the Act by excluding from the bargaining unit — and sustaining challenges to the votes of — the six Caravelle relatives- employed by the closely held family corporation through the use of the “community of interest,” instead of the “special status,” standard.

A.

The Board is invested with a broad discretion in determining bargaining units “to assure to employees the fullest freedom” in exercising their rights under the Act. Once made, its decision is entitled to great weight on review. Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491 67 S.Ct. 789, 91 L.Ed. 1040 (1947).

The Sixth Circuit described the Board’s process in determining unit composition:

The touchstone of an appropriate bargaining unit is the finding that all of its members have common interest in the terms and conditions of employment, to warrant their inclusion in a single unit to choose a bargaining agent. Uyeda v. Brooks, 365 F.2d 326, 329 (6th Cir. 1966).

And the court in Shoreline Enterprises of America, Inc. v. NLRB, 262 F.2d 933, 944 (5th Cir. 1959), stated:

Eligibility . . . depends on whether an employee is sufficiently concerned with the terms and conditions of employment in a unit to warrant his participation in the selection of a collective bargaining agent.

As the Board aptly puts it, a “community of interest” must exist among the workers included in a unit.

Accordingly, part-time and summer employees, lithographers and members of a composing room in a print shop, confidential and upper-level management personnel have all been excluded from various bargaining units for lack of community of interest. In United Aircraft v. NLRB, 333 F.2d 819 (1964), cert. den., 380 U.S. 910, 85 S.Ct. 893, 13 L.Ed.2d 796 (1965), the Second Circuit held that trainees had a sufficient community of interest for inclusion in the bargaining unit. The basis for each of these decisions was the determination that the unit employees were related by the common characteristics of the jobs they held.

However, in the early Board decisional history, job-related common characteristics have not necessarily qualified certain employees for inclusion in a unit. The community of interest standard has been relied upon by the Board to exclude individuals from bargaining units for familial reasons. In Louis Weinberg Assoc., Inc., 13 NLRB 66, 69 (1939), the Board excluded the son and daughter of the president and vice-president of the employer because “by virtue of the[ir] relationship . . . their interests are sufficiently distinguished from those of the other employees to warrant their exclusion from the unit . ” The Board adhered to this policy in subsequent cases. In P. A. Mueller and Sons, Inc., 105 NLRB 552, 553-554 (1953), the Board excluded a son and nephew of the employer’s owner-president in a small closely held corporation, stating:

. the Board long has excluded from the appropriate unit those employees who lack sufficient interests in common with the employes included in the unit. The Board early decided in this connection that the familial bond between an employer and employee is in certain eases so close as to remove the near relative from the “community of interest” shared by the other employees. The interests of such near relatives are identified not with their fellow-workers, but with management itself. (Footnotes omitted.)

The Board reasoned:

The inclusion of a close relative of the employer in a bargaining unit with the other employees in a particular plant may as effectively hinder the employees in organizing themselves and bargaining collectively as would the intrusion of any representative of management. In the eyes of the other employees, a son or nephew of the employer, although he may work with other workers, is intimately allied with management. Accordingly, the employees well may view with suspicion his membership in the bargaining unit, especially where, as here, the employing enterprise is small and closely held. (Footnotes omitted.)

However, the Sixth Circuit, in NLRB v. Sexton, 203 F.2d 940 (1953), held that the Board had no discretion to exclude individuals from bargaining units because of a lack of community of interest solely on the basis of family relationships. Sexton limited the Board’s discretion in excluding employees for family-related reasons to the literal terms in § 2(3) of the Act, excluding from the definition of “employee” an “individual employed by his parent or spouse ft

After Sexton the Board decisions entered upon a zigzag course. In International Metal Products Co., 107 NLRB 65, 67 (1953), the Board, citing Sexton, overruled sub silentio Mueller’s “irrebutable conclusion that the mere existence of a [a family] relationship negated the possibility of the existence of any community of interest,” and held that “the mere coincidence of a family relationship between an employee and his employer does not negate the mutuality of employment interest which an individual shares with fellow employees, absent evidence that because of such relationship he enjoys a special status which allies his interest with those of management.”

Thus the Board, in International Metal, turned from the per se language of Mueller and required more than “mere” family relationship as a basis for exclusion from the bargaining unit. In subsequent cases the Board, with the approval of courts, inquired into the working conditions of management relatives for determination of whether they enjoyed a “special status” that required their exclusion from the bargaining unit. Exclusions based on special status were limited to relatives who enjoyed job-related benefits or privileges. A general manager’s nephew who heard employee grievances, for example, was held to enjoy special status and was excluded from the unit in American Steel Buck Corp., 197 NLRB 554 (1953). And the daughter of the corporate employer’s secretary who was not required to punch a time clock, was not reprimanded for tardiness, and for whom no record was kept of absences for illness, was held to enjoy special status and was properly excluded, in Cherrin Corp. v. NLRB, 349 F.2d 1001 (6th Cir. 1965), cert. den., 382 U.S. 981, 86 S.Ct. 557, 15 L.Ed.2d 471 (1966).

Beginning in 1967, however, the Board returned from primary reliance upon the special status standard to the community of interest standard. In Foam Rubber City # 2 of Florida, Inc., 167 NLRB 623, 624 (1967), the Board, inter alia, held that “children of the principals of closely held corporations” should be excluded from the unit because of a lack of community of interest, using language reminiscent of the previously rejected Mueller decision:

. we have traditionally included in bargaining units those individuals who have a community of interest with their fellow employees .
[I]t is obvious that . . . children [of the principals of closely held corporations] because of their relationship with a substantial owner of this type of enterprise, have interests more closely identified with management than with their fellow employees.

In a footnote the Board disagreed with the Sixth Circuit’s Uyeda decision and its requirement of “affirmative evidence of special status.”

From 1967 to the present, the Board has used both standards with no discernible rationale for choosing one over the other. In Buckeye Village Market, Inc., 175 NLRB 271 (1969), Pargas of Crescent City, Inc., 194 NLRB 616 (1971), and Weyerhaeuser Company, 211 NLRB No. 140 (1974), the Board held that “mere . . . family relationship” alone was insufficient to exclude a relative from the bargaining unit, and that special status was required. A dissenter in the latter two cases argued that family relationship was sufficient for exclusion on the basis of lack of community of interest. In its decision herein, 200 NLRB No. 118 (1972), in Parisoff Drive-In Market, Inc., (citing Caravelle I), 201 NLRB No. 102 (1973), and in Cerni Motor-Sales, Inc., 201 NLRB No. 133 (1973), the Board used the community of interest standard to exclude relatives.

B.

Against the foregoing decisional history, we now consider the precise issue before us in the light of this court’s decision in Caravelle I.

In Judge Sprecher’s opinion for the court in Caravelle I, he described the corporation, shareholders, management, and family relationships of the six employees :

[Caravelle] manufactures wood products in South Chicago Heights, Illinois. It is a corporation whose stock is owned in equal portions by ten shareholders: Joseph Paradiso (president), his cousins Louis Paradiso (vice president), John Paradiso (head of receiving and mill room), Donald Paradiso (head of assembly), Nick Paradiso (head of shipping and packaging) and Rose Lecoure; the husband of another cousin, Richard Valentino; George Grutzius (head of mill room); Donald Kloss (head of finish room); and Charles Gaines. Thus 70 percent of the shares are owned by members of the Paradiso family; seven of the ten stockholders are active in the management of the Company.
Among the persons employed by the Company are eight relatives of shareholders: Gina and Paul Paradiso, the wife and son of Louis Paradiso; Deborah Paradiso, the daughter of John Paradiso; Inez Paradiso, the wife of Donald Paradiso; Irene, Raymond and Dennis Paradiso, the wife and sons of Nick Paradiso; and Donald W. Kloss, the son of Donald Kloss. 466 F.2d at 676.

The court rejected the Board’s expanded interpretation of § 2(3) of the Act, which would permit the per se exclusion of children and spouses of “substantial” shareholders of closely held corporations from bargaining units; and found that the Board had the power pursuant to § 9(b) of the Act to exclude children and spouses from the bargaining unit provided it did so on a case by case basis and not by application of a per se rule. The court noted that there were precedents for exclusion, on a case by case basis, of relatives who enjoy special status. But because the Board applied a per se rule and “relied entirely on the fact of family relationship” in excluding, under § 9(b), the six relatives from the unit, the court remanded the proceeding to the Board, with guidelines, for a factual determination of whether the votes of the six Car-avelle relatives should be counted: “there are a number of factors the Board might consider” on remand in its redetermination of the unit:

how high a percentage of stock the parent or spouse owns, how many of the shareholders are related to one another, whether the shareholder is actively engaged in management or holds a supervisory position, how many relatives are employed as compared with the total number of employees, whether the relative lives in the same household or is partially dependent on the shareholder. 466 F.2d at 679.

The court’s holding appears to favor the special status standard, since Sexton and other special status decisions were cited as authority. However, the court noted the Regional Director’s finding “that none of the challenged employees enjoy[ed] a ‘special status,’ ” 466 F.2d at 678, i. e., no job-related benefits or privileges, but did not consider that finding dispositive. It is important to keep in mind that none of the guidelines suggested by the court to be used by the Board on remand is job-related, pertain to family relationship. All

The court rejected the “irrebutable conclusion” that family relationship automatically precluded the existence of a community of interest with non-relatives, while at the same time rejecting the idea that job-related benefits or privileges must be proved before a relative could be excluded. We conclude, therefore, that Caravelle I fashioned an expanded community of interest standard that permits the Board to exclude employees on the basis of family relationship — without regard to job-related factors — provided the factual finding implicitly required by the guidelines is made in each case.

The court in Caravelle I drew upon the Board’s earlier and more recent decisions and set forth several elements arising from the familial relationship itself that could be the basis of the Board’s redetermination of whether the Caravelle relatives should or should not be included in the unit. We think the court gave the Board proper guidance. We also think the Board properly applied Caravelle I.

C.

Great literature gives testimony to basic facts arising from family relationships : Blood is thicker than water. The institution of the family is a human need; “the relation of parents and children . . . creates crises and tensions, conflicts between love and duty, between reason and the passions . ” Family peace and tranquility requires a form of government, and historically the father has been considered the head. So long as children are in the home under the care of parents, they are not free from the family rule which implies the duty of respect on the part of the children.

The foregoing literary testimony is corroborated by human experience generally, From all of this, we think the Board, in its discretion, could infer that under the circumstances before us it is probable that were the six relatives (or at least four, as will be seen infra) not excluded from the bargaining unit, their presence in the unit would interfere with the “fullest freedom” of the. other employees engaged in the selection of their bargaining unit.

Wé agree with one Board member’s views expressed in a fairly recent decision:

The inclusion of a close relative of management in bargaining unit with other employees in a particular plant may as effectively hinder the employees in ■ organizing themselves and bargaining collectively as would the intrusion of any representative of management ....
[Their] presence at union meetings would, considering the likelihood of [their] conveying information to the Employer . . . inhibit adequate and accurate expression of views and freedom of action on the part of the membership; and even if it did not, communication of such internal matters could effectively undermine or impair the ability of the Union to achieve its legitimate goals. Pargas of Crescent City, Inc., 194 NLRB at 617-618 (Member Jenkins, dissenting).

D.

The Supreme Court's decision in NLRB v. Savair Manufacturing Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973), does not militate against our decision. In that case the Court held that a union could not, consonant with the neutrality requirement of the Act, waive initiation fees for those employees signing union recognition slips prior to a representation election. Mr. Justice Douglas, writing for the Court, stated: “Any procedure requiring a ‘fair’ election must honor the right of those who oppose a union as well as those who favor it.” 414 U.S. at 278, 94 S.Ct. at 499.

Savair is inapposite. Unit determinations focus upon common interest in employment conditions within the unit; they do not focus ' upon the representation election. Relatives may be excluded, not because they may vote against the union, but because, in the Board’s informed judgment, they may not share the “common interest in the terms and conditions of employment” with the other members of the unit. For the same reason, confidential, part-time, and summer employees may be excluded from the unit. Indeed, if the broad language of Savair were applicable to unit determinations, even relatives Caravelle concedes should be excluded — those enjoying special status — could not be. We are not persuaded that by applying the community of interest standard here the Board violated the neutrality rule.

II.

The Board’s decision on remand shows that it substantially followed the guidelines suggested by this court in Cara-velle I. The Board stated:

The Company, a corporation, has 10 stockholders who own equal shares therein: Joseph Paradiso (president and chief administrative officer); his cousins who are brothers: Louis Par-adiso (vice president in charge of production, plant management, and scheduling), John Paradiso (treasurer and head of receiving and millroom), Donald Paradiso (head of assembly), and Nick Paradiso (head of shipping and packaging); their sister, Rose Le-coure, and Richard Valentino, the husband of another sister; George Grutz-ius (secretary and head of millroom), and Charles Gaines. All of the shareholders except Gaines are directors of the corporation, and all except Gaines and Valentino are “active in the business.” (Footnote omitted.)

That paragraph indicates the “high” percentage of stock owned by parents and spouses, the relationship of each to the other, and the managerial and supervisory activities of the shareholders. The record discloses that a total of 80 ballots were cast, and Joseph Paradiso testified that Caravelle employed approximately 88 or 89 employees.

As stated supra, the Board “presum[ed]” that Inez and Irene, and Raymond and Dennis, Paradiso lived in the same household with their husbands and father, respectively, and that Raymond and Dennis also lived in the family home and were economically dependent on their father. This presumption we think was reasonable, and there was no testimony to rebut it.

We noted above that the Board failed to decide whether Paul Paradiso and Donald Kloss resided at home or were economically dependent upon their fathers. However, even if we remanded the proceeding to the Board for determination of the qualification of Paul Par-adiso and Donald Kloss, and if the Board decided their votes should be counted, the result would not affect the validity of the Union’s certification as bargaining agent. If the two votes were counted and they were cast against the Union, the result would be 35 votes for the Union and 34 against the Union. Accordingly, we need not reach the issue of exclusion of Paul Paradiso and Donald Kloss.

For the several reasons stated, the Board’s order will be enforced.

STEVENS, Circuit Judge

(concurring). •

Subsequent to the decision in Cara-velle I, the Supreme Court reminded us that the statute is “wholly neutral” in requiring respect for those who oppose a union as well as for those who favor one. See NLRB v. Savair Mfg. Co., 414 U.S. 270, 278, 94 S.Ct. 495. That reminder did not purport to change the law and, therefore, does not justify a refusal to accept Caravelle I as the law of this ease.

I think Judge Kiley is correct in his interpretation of Caravelle I as holding that an employee-relative may be “special” in the sense that he does not share with his co-workers a common interest in the terms and conditions of their employment, and yet not be sufficiently special for the Board to find that he enjoys a “special status” as that term has heretofore been used. I am not at all sure that this special new category will be identifiable by any standard other than probable opposition to the union at election time — which is obviously an impermissible standard under Savair— but my doubts about the impact of Car-avelle I must be subordinated to my duty to respect it. Notwithstanding those doubts, I therefore concur in Judge Kiley’s well considered opinion.

       This opinion was written and approved by the panel and sent to Scheffer Press, Inc. for printing prior to the date of Judge Kil-ey’s death on September 6, 1974.

      . 29 U.S.C. § 151, et seq.

      . Textile Workers Union of America, AFL-CIO.

      . The record does not disclose bow or why the six, previously excluded from the unit, were able to vote.

      . The resolution of the remaining seven challenges is not beforei us.

      . The Regional Director had previously found that none of the relatives enjoyed “special status.”

      . “The Board shall decide in each ease whether, in order to assure to employees the fullest freedom in exercising their rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof ft

      . NLRB v. Quality Markets, 387 F.2d 20 (3rd Cir. 1967).

      . NLRB v. Belcher, 284 F.2d 118 (5th Cir. 1960).

      . NLRB v, Krieger-Ragsdale & Co., 379 F.2d 517 (7th Cir. 1967).

      . Wheeler Van Label Co., v. NLRB, 408 F.2d 613 (2nd Cir. 1969), cert. den., 396 U.S. 834, 90 S.Ct. 90, 24 L.Ed.2d 84 (1969).

      . Eastern Camera, 140 NLRB 569, 574-575 (1969) : “A confidential employee is one who assists and acts in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations.”

      . Illinois State Journal-Register, Inc. v. NLRB, 412 F.2d 37 (7th Cir. 1969).

      . Jerry and Edythe Belanger, 32 NLRB 1276 (1941) ; O. Philip Faucher, 78 NLRB 1172 (1948) ; Peter Pan Bus Lines, 82 NLRB 830 (1949) ; Rosedale Passenger Lines, Inc., 85 NLRB 527 (1949) ; Stanislaus Implement & Hardware Co., 92 NLRB 897 (1950).

      . “The term employee . . . shall not include . . . any individual employed by his parent or spouse . . . .”

      . A dissenting Board member argued that the community of interest standard was viable and should be retained.

      . Seeemingly the exclusion should have been based on his apparent role as supervisor, rather than liis familial relationship.

      . See also KERO Radio-TV, 116 NLRB 194 (1956) ; Garden Super Market, 148 NLRB 583 (1964) ; Payless Stores, 150 NLRB 518 (1964) ; Big Ben Dept. Stores, Inc., 160 NLRB 1925 (1966) ; Uyeda v. Brooks, supra; Udaco Manufacturing Co., 164 NLRB 700 (1967) ; NLRB v. Jackson Farmers, Inc., 432 F.2d 1042 (10th Cir. 1970), cert. den., 401 U.S. 955, 91 S.Ct. 974, 28 L.Ed.2d 238 (1971).

      . The Board in Foam Rubber City not only returned to the community of interest standard, but, considering the close corporation a de facto partnership, pierced the corporate veil to exclude an employee who was the son of one 50% shareholder and the nephew of the other under § 2(3) of the Act.

      . The Family; Introduction, Ch. 26, Vol. I, p. 493, The Great Ideas, A Syntopicon of Great Books of the Western World, Ency-clopaedia Britannica, 1952.

      . “It is a dictate of reason that when there is a marriage, children should follow the station' or condition of the father.” Montesquieu, The Spirit of the Law, Book 23.

      . The Family; Introduction, op. oit.

      Our immediate family is a part of ourselves. Our father and mother, our wife and baby, are bone of our bone and flesh of our flesh. When they die, a part of our very selves is gone. If they do anything wrong, it is our shame. If they are insulted, our anger flashes forth as readily as if we stood in their place.' Our home comes nexjt .... Its aspects awaken the tenderest feelings of affection; and we do not easily forgive the stranger who, in visiting it, finds fault with its arrangements or treats it with contempt. All these different things are the objects of instinctive preferences coupled with the most important practical interests of life. William James, Principles of Psychology, Ch. X, p. 189.

      . Uyeda, supra.

      . Tr. 11.

      . Judge Kiley correctly describes Garavelle I as having fashioned an “exjmnded community of interest standard.” The original “community of interest” standard was developed prior to the enactment of the Taft Hartley Amendment mandating neutrality at election time.