author: KOELSCH, Circuit Judge:

text:
    PORTLAND FISH COMPANY, a corporation, Plaintiff-Appellant, v. STATES STEAMSHIP COMPANY, a corporation, Defendant-Appellee.
    No. 73-1897.
    United States Court of Appeals, Ninth Circuit.
    Sept. 30, 1974.
    Rehearing Denied Dec. 24, 1974.

      William F. White, of White, Sutherland, Brownstein & Parks, Portland, Or., for plaintiff-appellant.
    Erskine Wood, of Wood, Wood, Tatum, Mosser & Brooke, Portland, Or., for defendant-appellee.

       The Honorable Walter T. McGovern, United States District Judge for the District of Western Washington, sitting by designation.

   OPINION

Before KOELSCH and KILKENNY, Circuit Judges, and McGOVERN, District Judge.

KOELSCH, Circuit Judge:

Pursuant to its agreement to purchase' frozen tuna from a seller in the Philippines, Portland Fish Company, the plaintiff, deposited an irrevocable letter of credit with a Manila bank, authorizing payment to seller of $562.50 per short ton of fish upon presentation of a bill of lading.

Thereafter, seller delivered some fish to States Steamship Company, the defendant (hereafter Carrier), for carriage and received from the latter its bill of lading. Carrier verified by piece count the number of fish received, but, having no facilities for weighing them, accepted seller’s weight. This information was reflected in the bill as follows:

“SAID TO BE: SAID TO WEIGH:

IN BULK 30 SHORT TONS CLIPPER YELLOW 60000

FIN TUNA GILLED & Lbs.

GUTTED 30 SHORT TONS

SAID TO CONTAIN:

519 PIECES

Immediately underneath appeared this endorsement:

“ ‘One Lot frozen fish said to contain 519 pieces said to weigh 60,000 lbs., freight charges to be adjusted on basis of properly certified outturn weights when such outturn weights are found to be three (3%) percent or more in excess of or under Bill of Lading weights.’ ”

Seller then presented its sight draft with bill of lading and supporting documents to- the Manila bank, which paid him for 30 short tons of tuna. However, Carrier, upon reaching its destination, outturned 580 fish, which weighed only 12.825 short tons.

Plaintiff commenced this suit in admiralty to recover from Carrier the amount of the difference between the sum paid to Seller against the letter of credit and the value of the cargo out-turned. Plaintiff’s theory was that Carrier was estopped to impeach the weight shown in its bill of lading. The district' court rejected plaintiff’s contention and ruled that, since the Carrier had out-turned all of the fish received from shipper, plaintiff should take nothing on its claim against Carrier and that Carrier should recover (on its counterclaim) against plaintiff the value of the 61 fish delivered plaintiff by mistake. Plaintiff appeals from the ensuing judgment. We reverse.

Ocean bills of lading in foreign trade are given effect subject to the provisions of the Carriage of Goods by Sea Act (Cogsa), 46 U.S.C. §§ 1300-1315. Carrier’s primary contention, upheld by the district court, is that the provision in Section 3, subsection 4, of Cogsa, making a carrier’s bill of lading “prima facie evidence” of the receipt of the goods, connotes a rebuttable presumption merely, and thus precludes estoppel. We disagree.

This circuit, as well as others, has consistently held the doctrine of estoppel applicable in cases arising under Cogsa and its predecessor, the Harter Act. Daido Line v. Thomas P. Gonzalez Corp., 299 F.2d 669, 673 n. 9 (9th Cir. 1962); Demsey & Associates v. S. S. Sea Star, 461 F.2d 1009, 1015 (2d Cir. 1972); Cummins Sales & Service, Inc. v. London & Overseas Insurance Co., 476 F.2d 498, 500, 501 (5th Cir. 1973). A good discussion of the early development of the estoppel doctrine as it pertains to bills of lading is contained in District Judge Woolsey’s opinion in The Carso, 43 F.2d 736 (S.D.N.Y.1930).

Cogsa was enacted against the backdrop of the Federal Bill of Lading (Pomerene) Act of 1916, 49 U.S.C. §§ 81-124. Section 22 of the Pomerene Act, 49 U.S.C. § 102, amounts to a codification of the estoppel principle and would be dispositive here, were it not for the inapplicability of the Pomerene Act to bills of lading issued in foreign ports. Nevertheless, the proviso contained in section 3(4) of Cogsa, 46 U.S. C. § 1303(4), expressly prohibits a construction of Cogsa which would limit or repeal the effect of the Pomerene Act, and the legislative history of Cogsa evidences a congressional concern for the continued prevention of such abuses as the Pomerene Act was designed to eliminate. We consider it highly unlikely that Congress intended that carriers be held to different standards of care in the issuance of bills of lading covered by the Act, depending solely on the location of the port of issuance, particularly where one of the primary purposes of Cogsa was the establishment of uniformity in bills of lading and the definition by law of the rights and duties of water carriers in foreign trade.

Moreover, it is well recognized that one of Congress’ objectives in enacting Cogsa was generally to enhance the currency and negotiability of ocean bills of lading. See, e. g., Daido Line v. Thomas P. Gonzalez Corp., sufra, at 673 n. 9; Spanish American Skin Co. v. The Ferngulf, 242 F.2d 551, 553 (2d Cir. 1957); Kupfermann v. United States, 227 F.2d 348, 350 (2d Cir. 1955); George F. Pettinos, Inc. v. American Export Lines, 68 F.Supp. 759, 764 (E. D.Pa.1947), aff’d, 159 F.2d 247 (3d Cir. 1947). As stated in Gilmore & Black, The Law of Admiralty (1957), at 125-126:

“Cogsa allows a freedom of contracting out of its terms, but only in the direction of increasing the shipowner’s liabilities, and never in the direction of diminishing them. This apparent onesidedness is a commonsense recognition of the inequality in bargaining power which both Harter and Cogsa were designed to redress, and of the fact that one of the great objectives of both Acts is to prevent the impairment of the value and negotiability of the ocean bill of lading. Obviously, the latter result can never ensue from the increase of the carrier’s duties.” (Emphasis in original.)

The continued vitality of the estoppel doctrine clearly serves this significant congressional objective.

It should perhaps be noted that Cogsa expressly provides the means by which carriers, in case of doubt concerning the goods, may protect themselves and avoid liability if they choose to do so. Thus (to reiterate) section 3 contains the provision “[t]hat no carrier, master, or agent of the carrier, shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received, or which he has had no reasonable means of checking.” Accordingly, under the

Pomerene Act or, in the case of inbound bills, under the doctrine of estoppel, such statements as the carrier does make become conclusive as against a holder in due course.

Of course we recognize that the party urging estoppel against the carrier must demonstrate that he has relied on the description that appears in the bill, for it is elementary that, absent reliance, there can be no estoppel. Thus the doctrine is not applicable in a suit by a shipper against a carrier, or where reliance on the description by a holder for value is not reasonable, or where the holder does not rely on the description at all. But here plaintiff’s reliance is manifest and was fully justified. The bill was “clean” — the qualification “said to weigh” did not befoul it.

The judgment is reversed, and the cause is remanded with directions to enter judgment for plaintiff.

ORDER ON REHEARING

On rehearing, several ocean carriers have moved for leave to file briefs amicus curiae. However, it appears that the issues sought to be raised in such briefs concern the possible effect of our decision on the ocean transportation of containerized cargoes — those in sealed “packages” not normally opened and inspected by the carrier at the time he issues a bill of lading. The motions are denied. Since the case before us involves solely a bulk shipment subject to piece count, the questions thus raised will have to wait another day for decision. We intimate no opinion on them. Appellee’s petition contains nothing new; the points reiterated have all been covered — in our opinion, correctly — in our earlier opinion.

The petition for rehearing is denied.

KILKENNY, Circuit Judge, would grant the rehearing, recall the opinion and affirm the judgment of the lower court.

      . The overplus in number apparently resulted from the commingling of other fish with those received from seller.

      . All the provisions of Cogsa that are pertinent to this matter appear in Section 3 (46 U.S.C. § 1303) and read as follows:
      “(1) * * *
      “(2) * * *
      “(3) After receiving the goods into his charge the carrier, or the master or agent of the carrier, shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things—
      ■<(a) * * *
      “(b) Either the number of packages or pieces, or the quantity or weight, as the case may be, as furnished in writing by the shipper.
      “(c) The apparent order and condition of the goods: Provided, That no carrier, master, or agent of the carrier, shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received, or which he has had no reasonable means of checking.
      “(4) Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraphs (3) (a), (b), and (c), of this section: Provided, That nothing in this chapter shall be construed as repealing or limiting the application of any part of sections 81-124 of Title 49.
      “(5) The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity, and weight, as furnished by him; and the shipper shall indemnify the carrier against all loss, damages, and expenses arising or resulting from inaccuracies in such particulars. The right of the carrier to such indemnity shall in no way limit his responsibility and liability under the contract of carriage to any person other than the shipper.”

      . Cogsa “was lifted almost bodily from the Hague Rules of 1921, as amended by the Brussels Convention of 1924, 51 Stat. 233.” Herd & Co. v. Krawill Machinery Corp., 359 U.S. 297, 301, 79 S.Ct. 766, 769, 3 L.Ed.2d 820 (1959). Those Rules, as amended by the Convention, were in turn derived largely from the pioneering Harter Act of 1893, 46 U.S.C. §§ 190-196. Id., at 301 n.5, 79 S.Ct. 766, 3 L.Ed.2d 820.
      We follow the “universal practice” of citing Harter Act cases to Cogsa points, where applicable, Gilmore & Black, The Law of Admiralty 127 (1957). See, e.g., Knauth, Ocean Bills of Lading 408-409 (1953); Longley, Common Carriage of Cargo 19-21 (1967); Tokio Marine & Fire Insurance Co. v. Retia Steamship Co., 426 F.2d 1372 (9th Cir. 1970), at 1376-1377.

      . Spanish American Skin Co. v. The Ferngulf, 143 F.Supp. 345 (S.D.N.Y.1956), aff’d, 242 F.2d 551 (2d Cir. 1957), relied upon by the court below, is not to the contrary. No claim of estoppel was there raised, and the Second Circuit has recently reaffirmed the vitality of the estoppel doctrine. See Demsey & Associates, supra, 461 F.2d at 1015.

      . 49 U.S.C. § 102 provides in part:
      “§ 102. Liability for nonreceipt or misdescription of goods.

      “If a bill of lading has been issued by a carrier or on his behalf by an agent or employee the scope of whose actual or apparent authority includes the receiving of goods and issuing bills of lading therefor for transportation in commerce among the several States and with foreign nations, the carrier shall be liable to * * * (b) the holder of an order bill, who has given value in good faith, relying upon the description therein of the goods, or upon the shipment being made upon the date therein shown, for damages caused by the nonreceipt by the carrier of all or part of the goods upon or prior to the date therein shown, or their failure to correspond with the description thereof in the bill at the time of its issue.”

      . See, e.g., Pacific Micronesian Lines, Inc. v. New Zealand Insurance Co., 366 F.2d 333 (9th Cir. 1966), 397 F.2d 236 (9th Cir. 1968); Williston on Contracts § 1081, 130 n.9 (3d ed. 1967).

      . Section 1 of the Pomerene Act, 49 U.S.C. § 81, provides:
      “Bills of lading issued by any common carrier for the transportation of goods in any Territory of the United States, or the District of Columbia, or from a place in a State to a place in a foreign country, or from a place in one State to a place in another State, or from a place in one State to a place in the same State through another State or foreign country, shall be governed by this chapter.”

        See also The Carso, supra, 43 F.2d at 744-745.

      . S. Rep. 742, 74th Cong., 1st Sess. (1935), contains the following explication of the proviso in section 3(4) of Cogsa, at 1-2:
      “The [proviso] is intended to preserve in effect the provisions of the Pomerene Act which hold a carrier liable for receipt of goods signed for by its representatives even though they may not actually have been received, this provision of the Pomerene Act having been found necessary to prevent abuses that were being practiced with damage resulting due to the negotiable character of the bill of lading.
      “Prior to the enactment of the Pomerene Act a number of cases had arisen in which shippers had induced representatives of common carriers to sign bills of lading receipting for illustration for a certain number of bales of cotton, on the shipper’s assurance that the cotton would later be delivered to the carrier. The shipper would then dispose of the bill of lading through the usual discounting procedure. Sometimes with intent to defraud and sometimes merely through financial inability as a result of rise in price, and shipper would fail to deliver the cotton. The courts held the fact that the goods had not actually been received to be an adequate defense to relieve the common carrier of liability. This loophole led to frauds on a large scale until the Pomerene Act finally made them impossible by providing that the carrier shall be liable for goods receipted for by its representatives, even though they may not actually have been received. All interests concerned appear to agree upon the importance of preserving this effect of the Pomerene Act.”

        See also Hearings on S. 1152 relating to the Carriage of Goods by Sea before the Senate Comm. on Commerce, 74th Cong., 1st Sess. (1935), at 27.

      . See H.R.Rep. 2218, 74th Cong., 2d Sess. (1936), at 1, 5-7. See also Knauth, supra n.3, at 118-131, 136.

      . See generally S.Rep. 742, supra n.8; H.R.Rep. 2218, supra n.9; and Hearings, supra n.8.

      . Carrier urges that the proviso was unavailable because the Philippines-American Traffic Act required the weight endorsement which appears at the bottom of the bill. The point is not well taken. First, the relevant tariff provision concerned simply freight charges, and the endorsement was no part of the description itself; second, the provision had no application: it required an endorsement only with respect to “shipments of frozen fish shipped in bulk as ‘one lot’ not subject to piece count and when freight is not charged on a weight basis . . . ”

      . See Dal International Trading Co. v. The SS Milton J. Foreman, 171 F.Supp. 794 (E.D.N.Y.1959). See also American Trading Co. v. The Harry Culbreath, 187 F.2d 310 (2d Cir. 1951); Strohmeyer & Arpe Co. v. American Line SS Corp., 97 F.2d 360 (2d Cir. 1938).
      Some commentators have suggested that the “prima facie” provision of section 3(4) of Cogsa is intended to make the bill of lading impeachable as between the shipper and carrier, but not as between the carrier and a bona fide purchaser. See Longley, supra n. 3, at 18-21; Knauth, supra, n.3, at 390-391. This is in accord with Cogsa’s purpose “to establish uniform ocean bills of lading to govern the rights and liabilities of carriers and shippers inter se in international trade.” Herd & Co. v. Krawill Machinery Corp., supra, 359 U.S. at 301, 79 S.Ct. at 769. H.R. Rep. 2218, supra n.9, at 1. It is also in accord with the provision in section 3(5) of Cogsa that the carrier’s right to indemnity from the shipper “shall in no way limit his responsibility and liability under the contract of carriage to any person other than the shipper.” But cf. Poor on Charter Parties and Ocean Bills of Lading § 64 (5th ed. 1968), at 161.

      . See, e. g., Austin Nichol & Co. v. Isla de Panay, 267 U.S. 260, 273, 45 S.Ct. 269, 69 L.Ed. 603 (1925); Tokio Marine & Fire Insurance Co. v. Retia Steamship Co., supra n.3, 426 F.2d at 1378.

      . See, e. g., Freedman v. The Concordia Star, 250 F.2d 867, 869 (2d Cir. 1957).

      . It has been held repeatedly that disclaimers such as “particulars declared by shipper,” “shipper’s weight,” or “said to be” do not render an otherwise clean ocean bill of lading “foul.” Spanish American Skin Co. v. The Ferngulf, 143 F.Supp. 345, 349-350 (S.D.N.Y.1956), aff’d, 242 F.2d 551, 554 (2d Cir. 1957); American Trading Co. v. The Harry Culbreath, 187 F.2d 310, 313 (2d Cir. 1951); George F. Pettinos, Inc. v. American Export Lines, 68 F.Supp. 759, 764 (E.D.Pa.1947), aff’d, 159 F.2d 247, 248 (3d Cir. 1947). See Gilmore & Black, supra n.3., at 106-107.


source: Caselaw Access Project

author: WYZANSKI, Senior District Judge. SWYGERT, Chief Judge

license: Public Domain

text:
    UNITED STATES of America ex rel. Countee WILLIAMS, Petitioner-Appellant, v. John J. TWOMEY, Warden, Respondent-Appellee.
    No. 74-1071.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 19, 1974.
    Decided Jan. 15, 1975.
    Rehearing and Rehearing En Banc Denied March 24, 1975.

      Charles J. Averbook, Chicago, 111., for petitioner-appellant.
    William J. Scott, Atty. Gen., Chicago, 111., Nolan Lipsky, Asst. Atty. Gen., Springfield, 111., for respondent-appellee.
    Before SWYGERT, Chief Judge, CUMMINGS, Circuit Judge, and WYZANSKI, Senior District Judge.

       Senior District Judge Charles Edward Wyzanski, Jr., of the District of Massachusetts, is sitting by designation.

   WYZANSKI, Senior District Judge.

This is an appeal from the District Court’s denial after full hearing and findings, of release on a petition for habeas corpus attacking a sentence of imprisonment for ten to twenty years imposed by the Illinois Circuit Court for Cook County following a jury verdict finding petitioner guilty of the crime of burglary of a television set. The principal issue raised here and in the District Court is petitioner’s claim that he, in violation of the due process clause of the Fourteenth Amendment to the United States Constitution, was denied the effective assistance of counsel.

In stating the facts, we are mindful of the strictness with which Rule 52 of the Federal Rules of Civil Procedure enjoins us to respect the findings of fact of the District Court unless they are clearly erroneous. Our reading of those findings reveals the following situation.

April 12, 1968, Countee Williams, petitioner, Alonzo Brock, and Juan Costillo were arrested on a charge of burglary of a television set from a furniture store. The arrests were made during the rioting and looting that followed the assassination of Dr. Martin Luther King, Jr., and in the atmosphere, noticed by the District Court, “of Mayor Daley’s order regarding looters and the widespread public displeasure over the destruction following the heinous assassination of Dr. King.”

The state court before which petitioner was immediately brought set bail at $5,000. Not meeting the bail, he was confined in Cook County Jail until the time of the trial.

July 24, 1968, petitioner having meanwhile been indicted for the aforesaid burglary, an arrest warrant was issued against petitioner, and his bail was temporarily increased to $10,000. Due to confusion at the Cook County Jail, the authorities did not locate him there, and his case was removed from the trial call of the Circuit Court. July 31, petitioner was arraigned, his case was assigned to Judge Wilson for trial, and the judge appointed Paul Bradley, Esq., a lawyer on the staff of the Public Defender who handled cases before Judge. Wilson, to represent petitioner. On the same day, Mr. Bradley, although he had not then had an opportunity to discuss the case with petitioner, filed pretrial motions. The judge held the case on the trial call for Friday, August 2, 1968.

On July 31 and continuing through August 1, Mr. Bradley was engaged in the trial of a murder charge against another defendant before Judge Wilson, and seemingly had no conference with petitioner or concern with his case.

August 2, 1968, Judge Wilson called petitioner’s case for trial. That was 112 days from the date he was taken into custody. Illinois Rev.Stat. ch. 38, § 103— 5(a), (d) requires that a person charged with an offense and held in custody must be tried within 120 days from the date he was taken into custody or he must be discharged therefrom. If a defendant requests a continuance, the 120-day period commences to run again.

When called for trial, Mr. Bradley informed the court that, having been engaged in the murder trial of another defendant before Judge Wilson, counsel had only “talked to the defendant [petitioner] for maybe ten minutes in the bullpen. And at this time I am not either ready to answer ready or to make a determination of whether there should be a continuance, I would like some time to talk to defendant.” When the prosecutor stated (on what basis we are left to conjecture) that “the defendant has indicated he wishes to proceed,” Mr. Bradley added, “The defendant has indicated that but, as you know, I have to make certain determinations as to whether it is in our best interests, and to advise my client.” Then Judge Wilson stated, “We will pass the case.” Thereupon there was a recess.

In what the District Judge found must have been the earlier ten minute conference in the bullpen, the petitioner had told Mr. Bradley “that he had been with others and had just left a tavern prior to his arrest; that he was employed at the time of his. arrest; and that he had a criminal record.” The District Judge also found that, it seems, at the hearing before him, the petitioner testified that “he told Bradley, [it may have been during the recess before the state trial began, but the District Judge does not clarify the point,] about four individuals in whose company he was at the time of the alleged burglary. Petitioner could not give the last names or addresses of these individuals, but testified they were from the neighborhood.”

The District Judge also found that “Prior to one of the discussions between Mr. Bradley and petitioner on August 2, Mr. Bradley and [the prosecutor] Mr. Friedman discussed (1) the possibility of a guilty plea in return for recommendations on sentencing and (2) the situation with respect to the 120-day term. Mr. Friedman indicated that the state did not know if it could find its witnesses; Mr. Bradley stated that he would convey the plea-sentencing offer to his client and then went to meet with the petitioner.”

“In one of the discussions on August 2, [Mr.] Bradley told petitioner he was not prepared for trial and that a continuance would be needed. Petitioner was unhappy over the prospect of a continuance and he and Bradley discussed the significance of their making a request for one.” [We are not informed as to how long a continuance would have been likely.]

Following one of the discussions between petitioner and Mr. Bradley, the latter indicated that “petitioner decided to gamble on the fact that the state would not be able to present its witnesses for trial.”

When the trial was reconvened, on this same August 2, Mr. Bradley did not request a continuance, and “indicated he wants to go to trial today.” On inquiry from the judge, the petitioner confirmed this. If the petitioner had requested a continuance, the judge, under Illinois law, could have postponed the case for 120 days. [But there is no indication how long the delay would actually have been.]

As an ultimate finding of fact, the District Court concluded that the “petitioner made the decision to go forward with the trial on August 2. . When making the decision to go forward with the trial, petitioner was motivated in part by the desire not to spend additional time in Cook County jail while awaiting trial, but the principal reason behind the choice was the possibility that the state would, on such short notice, be unable to secure sufficient witnesses to prove its case.”

“Before the trial commenced on August 2, [the prosecutor] Mr. Friedman gave petitioner’s attorney the names of the State’s three witnesses.” [We are not clear whether this finding is repugnant to the one last quoted. A possible reconciliation between the findings is that the prosecutor withheld the fact that his "witnesses were available until the defendant stated his readiness for trial, and this withholding occurred because Mr. Bradley did not again ask about availability of the state’s witnesses. We are not unmindful that a reason why Mr. Bradley may not have made a last-minute inquiry is that, as we have already noted, in earlier discussions on the same day, Mr. Friedman, according to an already-quoted finding of the District Court, “indicated that the state did not know if it could find its witnesses,” and possibly Mr. Bradley regarded that as a continuing representation by the prosecutor which the prosecutor was under a professional duty to amend if he had become aware of a change of circumstances.]

When the case began on that Friday, August 2, Mr. Bradley indicated that he couldn’t be present the next week, and that there was present in court another lawyer from the Public Defender’s office, a Mr. Cohan. Apparently, Judge Wilson authorized Mr. Cohan to act as a substitute, and appointed him as assigned counsel or co-counsel for petitioner. There is no indication as to whether Judge Wilson knew anything of Mr. Cohan except that he was from the office of the Public Defender. But in his findings, the United States District Judge states that Mr. Cohan “had been engaged previously in representing defendants at preliminary hearings,” but this was “Mr. Cohan’s first felony trial.” We are not informed as to whether before the trial began, Mr. Cohan had participated in any conference with petitioner. We, however, have been told at our bar that during at least part of the trial proceedings on Friday, August 2, Mr. Bradley was in the state courtroom, although we do not know in what capacity-

The state offered apparently all its case in chief on Friday. The court recessed over Saturday and Sunday. We are not told what Mr. Cohan did during the weekend recess. On Monday, August 5, Mr. Cohan called as his only witness petitioner. Before the District Judge, petitioner testified, apparently accurately in the District Judge’s opinion, that before taking the stand he had not been warned that if he took the stand his prior criminal record would be admissible. In any event, after petitioner did testify in the state court, the prosecutor introduced petitioner’s conviction record, and also called one of the arresting officers as a rebuttal witness.

The jury having convicted petitioner, he was sentenced by the court to ten to twenty years imprisonment. Petitioner sought review in a higher state court. There his appointed counsel did not raise the issue of effective assistance of trial counsel, and the conviction was undisturbed. Petitioner then filed in the United States District Court the instant petition for habeas corpus. Alonzo Brock, apparently as petitioner’s witness,testified as the District Judge found, and, it seems, at least did not disbelieve, “that he broke the furniture store window and that he committed the burglary for which petitioner was charged. He stated that not many people were on the street. At the time of petitioner’s trial, Brock had been declared mentally incompetent to stand trial, but [Mr.] Bradley was not aware of this.” [It does not appear when Brock regained his mental competence so that he became a useable witness.]

In support of the petition, petitioner’s counsel in the District Court contended that petitioner had been denied the effective assistance of counsel. Emphasis was laid on the late appointment of trial counsel [perhaps meaning to include as trial counsel both Mr. Bradley and Mr. Cohan], on the decision, apparently by counsel as well as by the petitioner, to go to trial on August 2, on defense counsel’s failure to move for a continuance on the ground that he did not have adequate time to prepare, on the failure of defense counsel to call several witnesses (including, it seems, both the co-defendant Brock and the alibi witnesses whose last names and addresses were unknown), on his failure to interview other potential witnesses, on the last minute substitution of Mr. Cohan for Mr. Bradley as defense counsel, on defense counsel’s failure to present evidence that the alleged burglary took place during rioting and looting (when, it might have been argued, confusion as to the identity of the burglar might have been likely), and on defense counsel’s failure to warn petitioner that if he took the stand his prior criminal record could be introduced into evidence.

The United States District Judge regarded none of those grounds adequate to prove that petitioner was denied his constitutional right to effective assistance of counsel, and denied the petition.

The judge stated that inexperience of counsel, absent a showing of prejudice, was not a sufficient basis to enlarge petitioner, and that the “Court finds that no prejudice is attributable to the alleged inexperience.” The judge observed that had evidence of the looting been offered, it might have been shown, as Brock later testified, that at the time of the alleged crime not many people were on the street, and that “even if there were a factual basis for such a defense theory, such evidence [of looting] might have been highly prejudicial,” so that not to have shown the looting was “a question of trial tactics, over which reasonable, experienced counsel could differ.” The judge noted that petitioner did not argue before him that had he known that his criminal record might be introduced he would not have taken the stand. On what the District Judge regarded as “the crux of petitioner’s claim,” the judge observed that petitioner had “decided to go forward with the trial after consulting with his attorney who advised him that more time was needed to prepare,” [an observation not entirely supported by the earlier specific findings which do not recite that the advice was so categorical.] “This decision was made in the hope that the state would be unable to meet its burden of proof. . . . Under the circumstances the decision is more in the nature of a tactical choice. In this context, it is worth noting that only petitioner really knew whether the four purported alibi witnesses, whose last names and addresses he could not produce, actually existed, and if so, whether they could be located if a continuance were requested.”

The District Judge also referred to some minor points, none of which he regarded as significant: that the Illinois 120-day rule, which might have resulted in 4 months more of imprisonment before trial, was not the primary reason behind petitioner’s decision for an immediate trial; that defense counsel failed to call character witnesses; and that, although Brock’s name appeared on the indictment as a co-defendant, the prosecution did not volunteer his address.

Finally, the District Judge ruled that petitioner’s testimony at the hearing was not sufficient to establish his innocence.

The judge having denied the enlargement or liberation of petitioner [not, as the judge loosely says, having denied the writ of habeas corpus, which, of course, had been issued before the hearing occurred in the United States District Court], appeal to this court followed.

We regard this as a close case in the light of the rule enunciated several times in this Circuit that in order to prevail in a habeas corpus petition asserting want of effective legal assistance in a criminal case, the petitioner must prove that counsel’s assistance was so limited as to make “a sham or mockery” of petitioner’s trial. Sims v. Lane, 411 F.2d 661, 665 (7th Cir. 1969).

We wholly agree with the District Court that the mere inexperience of trial counsel is not in itself enough to establish want of effective assistance of counsel.

Necessarily, every lawyer must begin his career without experience. His first case is not inevitably so ill-prepared or poorly presented as to justify a finding of his incompetence. Portia without experience was a remarkably successful representative of Antonio. In estimating counsel’s performance, the issue is not how much experience he has had, but how well he acted.

Nor do we accept as a broad general proposition that counsel appointed on the day of trial is inevitably or even presumptively unprepared to go to trial. Much depends on the nature of the charge, of the evidence known to be available to the prosecution, of the evidence susceptible of being produced at once or later by the defense, and of the experience and capacity of defense counsel. We are familiar with the ease with which Mr. John G. Johnson of the Philadelphia bar during the early years of this century successfully represented clients who retained him at the very moment that the client’s case was reached for trial. And, although few could equal Mr. Johnson, many lawyers have the facility, skill, and panache which make them ready instanter to champion a defendant who summons him at the twelfth hour.

Yet when an inexperienced lawyer is appointed on the day of trial to represent a defendant charged with as serious a crime as burglary, we are put on inquiry as to his effectiveness in the particular matter.

Here it is plain that neither Mr. Bradley who was first appointed nor Mr. Cohan who acted as trial counsel sought even a few days’ delay so that they could investigate Alonzo Brock who was named as a co-defendant and whose address was presumably known to the prosecutor, nor to see if they could identify and locate four persons whose first names defendant said he knew and whom he believed lived in the neighborhood. Moreover, Mr. Cohan did not advise petitioner of the risk that his criminal record could be introduced against him if he took the stand, nor does it even appear that Mr. Cohan addressed his own mind to a consideration of the advantage of passing the opportunity to call petitioner as a witness rather than to expose him to a revelation of his criminal record.

It is also disturbing to see at least a suggestion in the District Court’s finding that, perhaps innocently, the prosecutor on August 2 first represented that he had no witnesses available and then later on that very day produced a witness, and then the next week produced a further rebuttal witness. Without charging the prosecution with bad faith, we must wonder if competent defense counsel would not have at least asked for delay when and if he was surprised by the appearance of witnesses who a few hours before had been indicated to be unavailable.

Against the factors just recited, we must scrutinize with particular care the evidence that petitioner himself (according to the findings of the District Judge, to which we must give the weight commanded by Rule 52) decided to go to trial on August 2. There is no doubt that, responding to a direct question from the state trial judge, petitioner elected to proceed forthwith. It cannot be presumed that the petitioner was totally unsophisticated, for he had a criminal record. Yet it does appear from the record that he had only an eighth grade education. He is not shown to have been advised by counsel that if he sought postponement, it was not inevitable that the trial would be delayed for, say, another hundred days; quite possibly a request for a week’s delay might have been granted, particularly if Mr. Cohan, as newly appointed counsel, had said that he had had no chance, nor, because of the murder case, had Mr. Bradley had a chance to interview the co-defendant Alonzo Brock, who, as we now know, had a story exculpating petitioner, which Brock was not loath to tell. [We are less impressed by the possible alibi testimony of the four persons whose first names petitioner claimed to know, because, so far as we can tell, even to this date their identity has not been established.]

On the whole, we have determined that it was a mistake of law for the District Judge to have concluded that petitioner, knowing his rights and competently advised as to his situation, deliberately as a matter of trial strategy decided to seek an immediate trial, and, therefore, effectively waived his right to seek a postponement.

Having eliminated the factor of waiver by petitioner himself, we then are faced squarely with the issue whether it was grossly incompetent professional conduct for Messrs. Bradley and Cohan not to have sought a postponement until they or one of them could speak with co-defendant Brock and learn his story and his willingness to testify. We have concluded that absent all disinterested witnesses, and with the risk involved in calling as the sole witness for the defense the defendant himself, who was vulnerable because of his prior criminal record, the conduct of Messrs. Bradley and Cohan in not seeking a delay to investigate Brock’s role was sufficiently short of the expected professional standard of competent counsel to warrant us in adjudicating that petitioner was denied that effective legal assistance which constitutes the due process of law guaranteed by the due process clause of the Fourteenth Amendment, or, as is sometimes said, the assistance of counsel clause of the Sixth Amendment.

We are aware that this decision goes beyond an inquiry as to whether the state court trial was a sham or a mockery. But we have not gone to the point, urged upon us, of declaring that there is at least a presumption of failure to meet the constitutional guarantee of assistance of counsel merely because defendant’s attorney has been appointed on the day of trial, or is inexperienced in litigation, or makes egregious errors, tactical or strategic, in preparation, in conference, in examining witnesses, or in not investigating or calling potential witnesses. The Constitution, unlike the judicial oath, does not go so far as to promise equal justice to the poor and to the rich. Yet it does not leave the poor to a representation which is in any aspect — pretrial, investigatory, trial, or otherwise — shockingly inferior to what may be expected of the prosecution’s representation. While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators. The criminal defendant, whether represented by his chosen counsel, or a public agency, or a court-appointed lawyer, has the constitutional right to an advocate whose performance meets a minimum professional standard. We, having examined each of the lapses in the instant case both individually and collectively, are convinced that this petitioner for habeas corpus did not receive services of that standard in the Illinois county court.

In reaching our conclusion, we again state that we have not modified any of the United States District Judge’s findings. But we cannot refrain from expressing, our doubt whether there is indeed evidence to support his finding that petitioner in stating his willingness to have an immediate trial was motivated principally by his belief that the government had no available witnesses and was not chiefly motivated by his desire to avoid what he supposed was another 120-day delay. Our reading of the record did not disclose any basis in the petitioner’s express statements for such a finding. There are, on the contrary, indicia that the petitioner’s counsel received from the prosecutor before the case began a list of the state’s witnesses, and that there was no exploration by anyone of how the state judge would have reacted to a suggestion of a postponement of a week or two. Maybe the District Judge discerned motivation from the petitioner’s appearance and attitude as a witness before the United States District Court. No doubt, Lord Justice Bowen was right that a man’s state of mind is as much a fact as his digestion. There are times when the observer from facial expressions of the witness or his demeanor in testifying may rightly infer motive or other mental state. However, a cautious judge may also recall that the first Queen Elizabeth declared that we have no window into other men’s souls. Here it was dangerous to have inferred the petitioner’s motive when we are not even sure from the record exactly what his state-appointed counsel told him in the brief conference which preceded petitioner’s declaration in open court that he was ready for trial.

In fairness to District Judge McLaren, we feel bound to add that he applied the rule enunciated in our earlier cases that a petitioner, in order to show that his constitutional right to assistance of counsel had been denied, must prove that the trial leading to his conviction was a sham or a mockery. Johnson v. United States, 422 F.2d 555, 557 (7th Cir. 1970); United States v. Dilella, 354 F.2d 584, 587 (7th Cir. 1965). On this appeal we have broadened the rule. We now hold that the Constitution guarantees a criminal defendant legal assistance which meets a minimum standard of professional representation.

Judgment of the District Court reversed, with direction to that Court to vacate the state court sentence and to enlarge petitioner after 120 days from the date of our judgment unless before then he is brought to trial by the Illinois state authorities.

SWYGERT, Chief Judge

(concurring).

Although I concur in the result reached by the majority, I do so for different reasons. And while I agree with much of what Judge Wyzanski says generally about the effective assistance of counsel when defending one charged with a criminal offense, I do not believe it can be determined from the record in this case that Bradley and Cohan were guilty of “grossly incompetent professional conduct” in their efforts on behalf of Williams. In my view the critical problems in this case derive instead from the actions of the State of Illinois in placing defendant Williams in a position where reasoned choice as to the advisability of seeking a continuance became nearly impossible, and where his appointed counsel were forced to evaluate a very serious felony charge and recommend a critical decision regarding trial strategy without even an opportunity for a private meeting with their client. Under these circumstances I do not believe that success can be the measure of professional competence. While it is possible that Bradley and Cohan did not seek a continuance through oversight or lack of diligence, it is also possible that Williams insisted that the trial proceed based on his own hurried evaluation of the options available. The district judge-found that Williams chose to go to trial “in the hope that the state would be unable to meet its burden of proof” and that this was “in the nature of a tactical choice.” I would accept this finding and hold that under the circumstances of this case Williams was entitled to, but did not receive, effective assistance of counsel in making this critical decision.

As the majority points out, counsel for Mr. Williams was appointed July 31, 1968. When the appointment was made it was clear that Mr. Bradley would be unable to devote significant attention to Mr. Williams’ case until the conclusion of a murder trial then in progress. Nevertheless the Williams case was placed on the trial call for August 2, 1968, a mere two days later. Judge Wilson, who appointed Bradley to be Williams’ attorney and who set the case for trial on August 2, was presiding over the murder trial in which Bradley was engaged and was thus fully aware of the difficulty involved in the August 2 trial date. Judge Wilson was presumably also aware of the fact that Williams had been incarcerated for 110 days at the time of his arraignment and that the Illinois 120 day rule was therefore becoming an important consideration both for Williams and for the state. Yet he called Williams’ case for trial on August 2.

The record is clear that when Williams’ case was first called Bradley had been unable to consult with his client for more than 10 or 15 minutes. This does not appear to be due to any laxity on Bradley’s part since he had only concluded his murder trial on the previous day. These circumstances were communicated to Judge Wilson along with a request for additional time to talk to Williams who had already indicated his desire to go to trial. A short recess ensued, after which Judge Wilson held a conference in his chambers. During this conference it became perfectly obvious that Bradley could not have prepared for trial in the time given him and that he and Mr. Cohan were in fact unprepared. Yet Judge Wilson persisted in characterizing the situation in terms of Williams’ “demand” for trial. While Bradley showed great reluctance about the situation and made several veiled attempts to secure an additional period of time in which to prepare, Judge Wilson showed no hesitancy in the matter and in fact ended the conference by directly asking Williams if he still wanted to go to trial. When Williams responded that he did, Judge Wilson concluded, “All right, go ahead. Mr. Williams is demanding trial. And we will proceed right now.”

I believe that Williams’ decision to go to trial was not an informed or intelligent decision and therefore did not waive his right to effective assistance of counsel. Williams could only have enjoyed such assistance by seeking a delay sufficient for both him and his appointed attorneys to evaluate the case against him and to consider the possible- witnesses to be called in his defense. His decision to go to trial was' so much a product of the state’s inexcusable delay in setting an arraignment and appointing counsel that it cannot be relied upon to validate his trial. Faced as he was with a confusing welter of information, including a suggestion that the .state might not be ready, a fast explanation of the 120 day rule and the possible consequences of seeking a continuance at the end of the 120 day period, an offer of a plea bargain, and the prospect of a trial that very day, Williams’ decision to fore-go a fully prepared defense could only have been an act of desperation. By delaying both the trial and the appointment of counsel as it did, the state denied Williams sufficient time to think about his decision and it cannot now rely on that decision to support his conviction.

      . When the case was originally called, Bradley indicated his lack of opportunity to confer with Williams and his reluctance either to go to trial or to ask a continuance:
      MR. BRADLEY: As your Honor knows, this case came to this Court Wednesday while the State’s Attorney and myself and the Court were engaged in a jury and then it was set over until today. I have talked to the defendant for maybe ten minutes in the bullpen. And at this time I am not either ready to answer ready or to make a determination of whether there should be a continuance. I would like some time to talk to the defendant.
      THE COURT: We can’t keep this in suspension all morning.
      Is the State answering ready?
      MR. FRIEDMAN: Yes, absolutely. And the defendant has indicated he wishes to proceed.
      MR. BRADLEY: The defendant has indicated that but, as you know, I have to make certain determinations as to whether it is in our best interests, and to advise my client.
      THE COURT: We will pass the case. After a brief recess the case was again called, and at the request of Bradley a conference was held in chambers. At this time Bradley again stressed the time problems involved and reminded the court that Mr. Cohan would be trying the case:
      MR. BRADLEY: Judge, as you know, this matter came up Wednesday off arraignment. At that time I was in the middle of a murder trial and didn’t make any preliminary motions. And Mr. Coyntee [sic] has indicated he wants to go to trial today. But I would ask that the State agree that we are not waiving preliminary motions by starting to pick a jury today, that they will furnish us with a list of witnesses with an indication if there are any oral statements and an indication of any physical evidence that is going to be introduced, and certainly an indication if there is any written statements. And at this time we would like to reserve our right to make, motions to suppress, if any of those things should come up when the State furnishes that information.
      Is that agreeable, Mr. Friedman?
      MR. FRIEDMAN: I would think it would have been incumbent upon the defense to file any motions in the case itself when the case came off arraignment to His Honor’s courtroom. It was Mr. Williams who has requested to proceed, although Mr. Bradley pointed out he is leaving on vacation. And in view of the fact that we have a new Public Defender here, Mr. Williams is the one who is requesting to proceed, answering ready, and I think he does so at his own peril.
      MR. BRADLEY: May I reply briefly? This man has been in custody since April 12, 1968. He was brought to this courtroom for the first time—
      THE COURT: He is demanding trial.
      MR. BRADLEY: I certainly understand that, but I think he has a right to the effective assistance of counsel. And in trying to expedite this I am sure that by some sort of agreement the State will provide the things they are required to provide before trial, with enough time to properly make motions for—
      THE COURT: I am not making up my mind at this time, we will cover that area when we get there.
      THE COURT: Have you given him a list of witnesses, or anything yet?
      MR. FRIEDMAN: Pardon me?
      THE COURT: Have you furnished him with a list of witnesses?
      MR. BRADLEY: Yes, Your Honor, that was furnished to the Public Defender.
      THE COURT: The oral statements or written statements?
      MR. FRIEDMAN: I will offer no oral statements of this defendant.
      THE COURT: There have been no written confessions?
      MR. FRIEDMAN: No, sir.
      THE COURT: I don’t think we have any problem.
      MR. BRADLEY: As to this point—

        THE COURT: The man is demanding trial today without preparation?
      MR. BRADLEY: As to this point I didn’t want to waive his right to statements.
      THE COURT: You wouldn’t be waiving it.
      MR. BRADLEY: I wanted this clear in the record.
      THE COURT: I am sure on any evidence they will let you examine it prior to the actual trial.
      MR. FRIEDMAN: Absolutely.
      THE COURT: Williams, you still want to go to trial today?
      THE DEFENDANT: Yes.
      THE COURT: All right, go ahead.
      Mr. Williams is demanding trial. And we will proceed right now.
      The trial followed immediately.

      . Our recent opinion in United States v. Miller, 508 F.2d 444 (7th Cir. 1974), is instructive regarding late appointment of counsel in the criminal context:
      Jordan’s counsel was appointed only two days prior to trial. The record does not indicate that the delay in the appointment of Jordan’s counsel was in any way attributable to the defendant or to his attorney. In addition, Jordan was incarcerated during the period prior to trial, and was therefore unable to assist in the investigation of charges against him.
      In United States v. Knight, 443 F.2d 174 (1971), the Sixth Circuit held the failure to grant a continuance under circumstances similar to those before us to constitute an abuse of the district judge’s discretion, stating that:
      “We hold that prejudice is inherent under the facts and circumstances of the present case. The newly employed attorney for appellants, no matter how competent and experienced, could not be expected to prepare adequately during a thirty minute recess for a trial which would extend over a period of two days. While fully cognizant of the crowded condition of the dockets and the heavy workload carried by the experienced and able District Judge who tried the present case, we are compelled to the conclusion that failure to grant a continuance to allow counsel at least some time to prepare for the trial constituted an abuse of discretion”. 443 F.2d 178.
      In the present case, the motion for continuance was presented one day after counsel’s appointment and one day prior to trial. We fail to see how counsel could have been expected to seek discovery, prepare jury instructions, interview prospective witnesses, research law, prepare his opening statement and summation, interview his client and perform the numerous other tasks and duties necessary to insure adequate representation by counsel. As Justice Black stated in Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940):
      “But the denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution’s requirement that an accused be given the assistance of counsel. The Constitution’s guarantee of assistance of counsel cannot be satisfied by mere formal appointment.”
      Although the granting or denial of a motion for continuance is a matter within the sound discretion of the district court, and is normally not grounds for reversal on appeal, Avery v. Alabama, supra, we must conclude that in the instant case the district judge, for the foregoing reasons, abused his discretion in denying the motion for a continuance. Accordingly, Jordan’s conviction is reversed.
      Adthough Miller involved the denial of a continuance requested by a defendant in that case, we believe the considerations which led to reversal of conviction there apply here as well. The very decision not to seek a continuance in the present case was tainted by the Government’s delay in appointing counsel until the very end of the 120 day period.


author: MARIS, Circuit Judge.

text:
    INDIANA HARBOR BELT RAILROAD COMPANY, Plaintiff-Appellee, v. UNITED STATES of America et al., Defendants-Appellants.
    Nos. 74-1031, 74-1101.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 8, 1974.
    Decided Feb. 11, 1975.
    Certiorari Denied June 23, 1975.
    See 95 S.Ct. 2656.

      James R. Thompson, U. S. Atty., Gary L. Starkman, Asst. U. S. Atty., Chicago, 111., Hanford O’Hara, I.C.C., Washington, D. C., Martin M. Lucente, Chicago, 111., William Kanter, Dept, of Justice, Washington, D. C., for defendants-appellants.
    Anna M. Kelly, Chicago, 111., for plaintiff-appellee.
    Before MARIS, HASTINGS and TONE, Circuit Judges.

       Of the Third Circuit, sitting by designation.

   MARIS, Circuit Judge.

This is an appeal from a judgment of the district court setting aside an order of the Interstate Commerce Commission made by its Division 2. Charges on Movements of Privately Owned Cars To and From Repair Shops on the Line of Indiana Harbor Belt R. R., 1972, 341 I.C.C. 57.

The controversy out of which the case arose has to do with the applicability of Freight Tariff 325-U, I.C.C. No. 1160, of Indiana Harbor Belt Railroad Company, herein referred to as IHB, to certain empty car movements of the defendants, General American Transportation Corporation and North American Car Corporation, herein referred to as the Car Companies. IHB, a belt carrier, operates a short line of railroad in the Chicago, Illinois, switching district and performs various types of switching movements for its 30 connecting line-haul carriers as well as for industries located on its tracks and also switches empty cars to and from seven repair facilities also located on its tracks. The controversy began when IHB sought to collect certain charges from the Car Companies under Tariff 325 — U. IHB claimed that it had previously unaccountably failed to bill and collect charges for the movement of empty tank cars owned by the Car Companies into and out of repair shops, although it had collected from them charges under that tariff for the similar movement of empty freight cars other than tank cars.

The Car Companies are manufacturers of freight cars which sell or lease such cars to shippers moving their goods over IHB and other lines and which also own three of the seven repair shops on the IHB line. They refused to pay the charges, denying the applicability of IHB Tariff 325 — U not only to the tank car movements for which payments had not been made but also to the movements into and out of repair shops of other empty freight cars for which they now claimed they had mistakenly paid in the past. To enforce its claims IHB brought two separate suits, one against each Car Company, in the district court to recover the amounts which it claimed as charges for switching empty tank cars to and from repair shops during the prior three years. The Car Companies thereupon counterclaimed^ as defendants in their respective suits, for the sums which they had previously paid to IHB for the switching of empty freight cars other than tank cars to and from repair shops.

Recognizing the primary jurisdiction of the Interstate Commerce Commission in this matter of applicability of rates, the district court, upon motion of the Car Companies, ordered a stay of its proceedings to allow either party to apply to the Commission for a ruling on the applicability and the lawfulness, if applicable, of IHB Tariff 325 — U to the movements in question of defendants’ cars. Accordingly, the Car Companies jointly petitioned the Commission for a declaratory order under the Administrative Procedure Act, 5 U.S.C. § 554, that the movements of empty tank cars and other empty private freight cars were subject to items of Agent B. B. Maurer’s Mileage Tariff 7, I.C.C. No. H — 32, generally providing that such movements are to be made free of charge and that IHB’s interpretation of Maurer’s Mileage Tariff 7 permitting revenue billing on the empty movements of private freight cars to repair shops would result in an unreasonable, unjust and discriminatory practice in violation of the Interstate Commerce Act.

The purpose of Maurer’s Mileage Tariff 7 will be briefly explained. Ordinarily, railroads furnish the cars which shippers require to transport their merchandise. However, a shipper may use his own cars for this purpose or lease them from a private car company. Since the freight rates charged by the railroads to the shipper for moving his goods include .a cost factor for supplying freight cars, such factor including car acquisition, maintenance and movement costs, the railroads should reimburse the shipper or car owner a’ reasonable amount when the shipper uses other than railroad cars. Maurer’s Mileage Tariff 7 sets forth the rules governing the handling of and the mileage allowances to be paid on cars of private ownership by railroads party to the tariff, which include IHB and virtually all other American railroads. The purpose of these rules and allowances is to offset the charge to which we have referred which is included in the railroad freight rates for the use of carrier-owned cars. The offset is accomplished by a mileage allowance, paid by the railroad to the shipper using private cars or paid directly to the private car owner or lessor, for all miles traversed whether the car is empty or loaded except that if the aggregate of the empty miles exceeds the aggregate of loaded miles in an accounting period, the excess is subject to certain charges. This last provision is the so-called equalization rule set forth in items 120 and 260 of Maurer’s Mileage Tariff 7. Subject to certain exceptions and to the equalization rule, items 120 and 260, however, generally provide that empty cars be moved free of charge.

The relevant portions of items 25, 30 and 120 of section 1 of Maurer’s Mileage Tariff 7 are set out in the margin. Section 1 deals exclusively with tank cars. Section 2 dealing with freight cars other than tank cars contains in items 140, 145 and 260 provisions substantially identical in content with items 25, 30 and 120, respectively, of section 1. The switching charge imposed by IHB Tariff 325 — U on the movement of empty freight cars which IHB is seeking to collect from the Car Companies is stated in the tariff to apply to “Railway Equipment on own wheels, viz.: Empty Freight Cars.”

Upon submission of written testimony and briefs under its rules of modified procedure, the Commission referred the proceeding before it, to which IHB was made respondent, to a hearing examiner. The examiner considered the relevant portions of Maurer’s Mileage Tariff 7 and concluded that the IHB charges under its Tariff 325-U for the movements of the empty cars in question into and out of repair shops fell within the exceptions stated in items 30(a) and 145(a) of the Mileage Tariff, were applicable to those movements and were not unreasonable or unlawful. In resolving the “slight conflict” between two “specific” provisions of the Mileage Tariff, items 30(a) and 120, in favor of IHB, the examiner stated that the possible ambiguity created by the language of the Mileage Tariff was removed by consideration of the particular circumstances that “IHB does not receive any share of the line haul assessed on loaded movements passing over its line.” The examiner also gave weight to the fact that IHB Tariff 325 — U included a switching charge for empty car movements.

The Car Companies filed exceptions to the examiner’s recommendations and the Commission, acting through its Division 2, thereafter issued a final report and order unanimously rejecting the report and order recommended by the examiner. The Commission concluded that item 25 of Maurer’s Mileage Tariff 7, which specifically included the movement in question making the item 120 general provisions expressly applicable to car movements to shops for repairs, took precedence over the “vague and ambiguous” exceptions provision of item 30(a), and further that the language of IHB Tariff 325 — U — “Railway Equipment on own wheels, viz.: Empty Freight Cars” —was not specific enough as to the kind of empty car movements covered to supplant, under the exception in item 30(a), the very specific language of item 25— “tank cars when used by railroads . for transportation over their lines, including the movement to shops for repairs or reconditioning or returning therefrom.” The Commission took the view that the broad interpretation required by IHB’s position that the mileage charge imposed by its Tariff 325 — U fell within the exception of 30(a) would, when taken to its logical conclusion, result in the exception nullifying the mileage allowance tariff generally.

Upon the denial by the Commission of the petition of IHB to reconsider the order holding IHB Tariff 325-U inapplicable, IHB filed a third action in the district court, this one to set aside the Commission’s determination. IHB complained that the Commission’s order was arbitrary and capricious, that it was based on a misinterpretation of the law and evidence, that it conflicted with the plain language of the tariff items involved, that it violated the Interstate Commerce Act, in that it compelled the charging of discriminatory rates and also in that it compelled IHB to furnish free transportation since IHB does not participate in line-haul carrier freight rates, and that in the latter respect it violated the Fifth Amendment of the Constitution by ordering a confiscatory taking of the IHB property without due process. The Car Companies intervened as defendants, and the district court consolidated the three cases, since it concluded that its decision in the third suit would be dispositive of the issues in the two earlier suits against the Car Companies. The district court subsequently entered a judgment setting aside the determination of the Commission and dismissing the two suits brought by IHB against the Car Companies without prejudice to their later reinstatement. 1973, 368 F.Supp. 904. From the portion of the judgment which set aside the determination of the Commission appeals were taken by the Car Companies at our No. 74 — 1031 and by the Commission and the United States at our No. 74 — 1101.

The district court arrived at its conclusions by first noting that the practices of both IHB and the Car Companies in making and paying charges for empty car movements were inconsistent with their present claims. The court discounted the application of various rules of tariff interpretation which were urged upon it as either not dispositive in the circumstances of the case or as cancelling each other out. The court did concede that “this fact situation — at least as explored superficially — is one in which good judgment could favor either contestant”, but proceeded to review the Commission’s order “the Items in suit in the larger perspective of their interrelationship to the entire scheme of railroad charges and tariffs.” 368 F.Supp. at 907. The court adopted the view of the Commission’s examiner that the particular circumstances of IHB’s situation should weigh the otherwise balanced scales in its favor. In the court’s view, since the repair movements of carrier-owned cars over another carrier’s tracks have been held by the Commission to be subject to charges, Use of Private Passenger Train Cars, 1929, 155 I.C.C. 775, the Commission’s rejection of an interpretation of the tariffs which would allow IHB to assess a charge for repair movements of privately owned freight cars, would precipitate a violation of the anti-discriminatory provisions of section 2 of the Act.

We think, however, that the district court in reaching its decision took into consideration matters not properly before it and that on the issue which was properly before it, the validity of the interpretation by the Commission of the tariffs involved, the court erred. We are satisfied, in particular, that it was not within the province of the district court, in reviewing the determination of the Commission on this issue, to consider ab initio the question whether the application of the tariffs as interpreted by the Commission, would result in unlawful discrimination in violation of section 2 of the Interstate Commerce Act. 49 U.S.C.A. § 2. For it is settled that primary jurisdiction for determining whether rate charges are discriminatory lies with the Interstate Commerce Commission and not with the courts. United States v. Wabash R.R., 1944, 321 U.S. 403, 410-411, 64 S.Ct. 752, 88 L.Ed. 827. The inquiry involves the exercise of discretion in a technical field requiring the expertise of the Commission, whether it is conducted to determine if a party in the past has been wronged, a judicial function, or to determine what rate or practice shall be deemed reasonable in the future, a legislative function. Great Northern Ry. v. Merchants Elevator Co., 1922, 259 U.S. 285, 291, 42 S.Ct. 477, 66 L.Ed. 943. That a body should exist fitted to make a primary determination from the facts as to whether a preference or discrimination obtains was one of the reasons for the creation of the Commission. United States v. Chicago Heights Trucking Co., 1940, 310 U.S. 344, 352, 60 S.Ct. 931, 84 L.Ed. 1243. Thus the courts must enforce a rate, even though alleged to be discriminatory, until the matter of discrimination has first been decided by the Commission. Texas & Pacific Ry. v. Abilene Cotton Oil Co., 1907, 204 U.S. 426, 439, 27 S.Ct. 350, 51 L.Ed. 553. Indeed one of the purposes of the Interstate Commerce Act is to provide an effective means to redress unjust discrimination through the publication of rates and their undeviating application subject to review and approval by the Commission.

Nor was it proper for the district court to review the soundness of the Commission’s determination and its conformity with the policy and principles laid down in section 1 of the Interstate Commerce Act. 49 U.S.C.A. § 1. Georgia Public Service Commission v. United States, 1931, 283 U.S. 765, 775, 51 S.Ct. 619, 75 L.Ed. 1397; I.C.C. v. Martin Bros. Box Co., 9 Cir. 1955, 219 F.2d 811, cert. den. 350 U.S. 823, 76 S.Ct. 50, 100 L.Ed. 735. The courts may not substitute their judgment on these questions for the findings and conclusions of the Commission. United States v. New River Co., 1924, 265 U.S. 533, 542, 44 S.Ct. 610, 68 L.Ed. 1165.

We come then to the issue which was properly before the district court, namely, whether the Commission erred in holding that the provisions of IHB Tariff 325 — U fixing a rate for the movement of empty freight cars on their own wheels superseded under the general exception of items 30(a) and 145(a) of Maurer’s Mileage Tariff 7 the specific provisions of items 25, 120, 140 and 260 of that tariff that empty tank and other freight cars will be moved without charge to shops for repairs and return therefrom. We think that the reconciliation of these conflicting tariffs and the proper scope of each in view of the other was a matter peculiarly within the competence of the Commission to determine in the light not only of their language but also of all the customs, practices and other underlying facts involved. United States v. Western Pacific R.R., 1956, 352 U.S. 59, 65-66, 68, 77 S.Ct. 161, 1 L.Ed.2d 126. To the Commission’s determination of such a question the courts will give great weight. United States v. North Carolina Granite Corp., 4 Cir. 1961, 288 F.2d 232, 235.

The district court recognized that its scope of review was narrow but nonetheless reversed the Commission on the basis of the court’s view of the proper operation of the tariff provisions involved in the larger perspective of their interrelationship to the entire scheme of railroad charges and tariffs, and of its conclusion that the Commission’s interpretation would precipitate discriminatory practices in violation of section 2 of the Interstate Commerce Act. The court conceded that if one were limited to the face of the record alone good judgment could favor either view of the impact of the tariffs upon each other. With this conclusion we agree and we think that the court should have so limited its consideration of the Commission’s order.

The conclusion of the district court to which we have just referred makes it unnecessary for us here to review in any detail the record or the opinion of the Commission. We may point out, however, that the Commission referred to the billing and payment practices of private car owners and carriers under tariffs similar to IHB Tariff 325 — U, to the question whether the empty freight cars on their own wheels described in Tariff 325 — U were to be considered as commodities or as instrumentalities of commerce, and the meaning of the word “assessed” in items 30(a) and 145(a) of Maurer’s Mileage Tariff 7. The Commission largely based its decision upholding the applicability of items 120 and 260 of that tariff on the canon of construction that a specific tariff rule takes precedence over a more general one, especially where, as here, the application of the more general rule would nullify the tariff scheme involved in the specific rule. See National Van Lines, Inc. v. United States, 7 Cir. 1966, 355 F.2d 326, 332. This interpretation of the tariffs was consistent with the rule of construction that ambiguous tariff language must be construed in favor of the shipper and against the carrier. Calcium Carbonate Co. v. United States, S.D.Ill.1966, 256 F.Supp. 99, 102-103.

But little need be said of the claim of IHB that the Commission’s order, by requiring it to perform a free service, has authorized the taking of its property without just compensation in violation of the Fifth Amendment to the Constitution. For IHB did not make the showing as to its over-all operations which was necessary to enable the court to consider such a claim. Baltimore & Ohio R.R. v. United States, 1953, 345 U.S. 146, 150, 73 S.Ct. 592, 97 L.Ed. 912.

Reversed.

      . Indiana Harbor Belt R.R. v. General American Transportation Co., N.D.Ill.1970, Civil Action No. 70 C 491, and Indiana Harbor Belt R.R. v. North American Car Corp., N.D.Ill.1970, Civil Action No. 70 C 492.

      . The Car Companies also counterclaimed for sums which they paid for the movement of tank cars when IHB threatened to discontinue the service in question if payment were not made.

      . Maurer’s Mileage Tariff 7 was cancelled and replaced January 1, 1971 by Maurer’s Mileage Tariff 7—B, I.C.C. No. H-43.

      . Item 25
      APPLICATION
      ******
      Except as otherwise provided herein, these rules govern the payment of mileage allowances and equalization of mileage on tank cars when used by railroads, parties to this tariff, individually (or jointly where specifically provided herein), for transportation over their lines, including the movement to shops for repairs or reconditioning or returning therefrom, as follows:
      $ * * * -fc *
      Item 30
      EXCEPTIONS TO APPLICATION AND RULES
      * * * * * *
      The rules and mileage allowances published herein, will not apply on the following:
      (a) Movements of empty cars for which charges are assessed under tariff authority.
      ******
      Item 120, Rule 3
      EQUALIZATION OF MILEAGE ON TANK CARS
      Except as otherwise provided in Items 25 and 30 (Application and Exceptions to Application), tank cars will be moved empty without charge at the time movement is made subject to the following conditions:
      (a) Except as provided in Notes 2 and 3 below, should the aggregate empty mileage of cars bearing any of the reporting marks assigned to any one person or company at the end of each calendar year, or at the close of any such yearly period as may be mutually agreed upon, exceed the aggregate loaded mileage on the lines of such railroads, individually (or jointly when mileage accounts are computed jointly), such excess must be paid for by the person or company to whom the reporting marks are assigned, either by an equivalent loaded mileage during the succeeding six (6) months, or at applicable mileage rates named in the Consolidated Freight Classification, in the Uniform Freight Classification or in State Classification tariffs Where State rates apply, or other applicable tariffs, without minimum, plus an amount equivalent to the mileage allowance that has been paid by the railroads on such excess empty mileage.
      * * * * * *

      . The Commission’s decision on this question is, of course, subject to judicial review. Pennsylvania R.R. v. United States, 1960, 363 U.S. 202, 205, 80 S.Ct. 1131, 4 L.Ed.2d 1165.


author: LEVENTHAL, Circuit Judge:

text:
    UNITED STATES of America v. Frankie ALLEN, Appellant.
    No. 72-1473.
    United States Court of Appeals, District of Columbia Circuit.
    Oct. 15, 1974.
    Jeffrey Freund, Washington, D. C., was on the brief for appellant. Robert A. W. Boraks, Washington, D. C., entered an appearance for appellant.
    Earl J. Silbert, U. S. Atty., John A. Terry and Donald A. Couvillon, Asst. U. S. Attys., were on the brief for appellee.
    Before LEVENTHAL and ROBB, Circuit Judges, and NICHOLS, Judge, United States Court of Claims.

       Sitting by designation pursuant to 28 U.S.C. § 293(a).

   LEVENTHAL, Circuit Judge:

The principal contention in appellant’s brief is that the reasons stated by the trial judge for sentencing as an adult under 18 U.S.C. § 5010(d) were insufficient, and reflect a failure to comply with the requirement of United States v. Coefield, 155 U.S.App.D.C. 205, 476 F.2d 1152 (1973), that the judge specify the basis for his conclusion that the defendant will not benefit from Youth Act treatment. Coefield was designed, says appellant, to permit meaningful judicial review, United States v. Forrest, 157 U.S.App.D.C. 188, 191, 482 F.2d 777, 780 (1973).

In Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974), decided after the briefs were filed, the Supreme Court held that the district court’s finding that the offender would not benefit from treatment under the Federal Youth Corrections Act does not require supporting reasons. The Court put it that any requirement of such statement of reasons would limit the discretion of the sentencing judge and facilitate appellate review of sentencing, contrary to legislative intent. 418 U.S. at 441-442, 94 S.Ct. 3042. We think Dorszynski effectively undercuts appellant’s primary contention that the District Court’s specification of reasons was insufficient under the Youth Corrections Act.

We now proceed to discuss appellant’s formulation that the action of the trial judge was “improper.” While in Dorszynski the Court stated “the general proposition” negating an appellate function when a sentence is within the statutory limits, it clearly was aware of phases of sentencing that are within appellate review. To the sentence stating the “general proposition” the Court added a footnote (fn. 7) that pointed out: “There is no contention here that the District Court relied upon improper or inaccurate information. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).” The Tucker case remanded for resentencing when the judge gave explicit consideration to defendant’s prior convictions and it was later determined that two of these convictions were obtained without assistance of counsel to defendant and hence were constitutionally invalid.

Other instances of rulings that establish a limited appellate supervisory role —not extending to review of the severity of punishment — are the decisions remanding where a trial judge sentences a defendant not represented by counsel at the time, Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), or hears in the sentencing proceeding from a prosecutor who thereby violates his agreement not to allocute, see Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), or imposes a stiffer sentence because the defendant asserted his innocence at a trial, Scott v. United States, 135 U.S.App.D.C. 377, 419 F.2d 264 (1969).

The Court in Dorszynski held that the Youth Corrections Act should not be interpreted so as to diminish the traditional sentencing discretion of the trial judge, but it did not undercut the general appellate function in assuring that there has been a proper foundation for the exercise of discretion. Thus, the Court quoted with approval 418 U.S. at 443, 94 S.Ct. 3042 the following:

“Appellate modification of a statutorily-authorized sentence is an entirely different matter than the careful scrutiny of the judicial process by which the particular punishment was determined. Rather than an unjustified incursion into the province of the sentencing judge, this latter responsibility is, on the contrary, a necessary incident of what has always been appropriate appellate review of criminal cases.” United States v. Hartford, 489 F.2d 652, 654 (CA 5 1974). Emphasis in original.)

Other examples of review of sentencing process that are in no way based on the Youth Corrections Act appear in, e. g., Coleman v. United States, 123 U.S. App.D.C. 103, 106, 357 F.2d 563, 566 (1965) (en banc); Leach v. United States, 118 U.S.App.D.C. 197, 334 F.2d 945 (1964).

Appellant contends it was wholly improper for the trial judge to impose an adult sentence on the ground, among others, that there was overcrowding at the Youth Center. We interpolate that we don’t read the remarks of the trial judge in the same way as appellant. In imposing adult sentence, the court expressly relied on the recommendation of the report obtained pursuant to 18 U.S. C. § 5010(e), after the defendant was permitted to plead guilty prior to age 21. The District Court said:

We sent you down to the Youth Center for evaluation, and they come back with an adverse report for a variety of reasons, one of which is the overcrowded conditions, the other the fact of your record, still another the level of training is such that you wouldn’t benefit from Lorton.
Judge Walsh has recently sentenced you, after having given you a chance as a result of which you were able to work for nine months as a counselor at the Public Defender Service. You engaged in an armed robbery when, by your own admission, you and your wife had something in the neighborhood of a $12,000-a-year income. (Tr. 10-11) (emphasis added).

And in adopting the report, the court added reasons of its own.

We are not confronted here with the issue that would arise if the District Judge concluded that the defendant was one who would benefit from Youth Corrections Act treatment (thus making the finding specified by that Act) but that a sentence under the Youth Corrections Act must be withheld because the facilities were overcrowded.

As for the other grounds that appellant finds were “improperly” relied on by the District Court — his prior criminal record, his already high level of academic and employment achievement, his adult sentence in another case — he is, in essence, asking us to review an exercise of discretion, and to become engaged in a review of the reasons given by the trial judge. The difficulty with appellant’s contention is that it would embroil the appellate court in the kind of review of sentencing reasons that Dorszynski says is not a legitimate part of the appellate function. There is a sharp difference, at least in degree, between questions like these and the defects that occasioned appellate review of process in the Tucker and other cases discussed above.

Appellant was sentenced on two counts of armed robbery, 22 D.C.Code §§ 2901, 3202 (1973) (7 to 21 years); two counts of assault with a dangerous weapon, 22 D.C.Code, § 502 (1973) (3 to 10 years); and one count of carrying a concealed weapon, 22 D.C.Code § 3204 (1973) (1 year), all to be served concurrently with each other and with the term of 3 to 9 years previously imposed by another judge in another case. The District Court resentenced on the robbery counts, while the appeal was pending, to a term of five to fifteen years. Appellant’s convictions and sentences on counts 3 and 6 (assault with a dangerous weapon) are vacated. The sentences on counts 1 and 4 (armed robbery) are vacated and the case is remanded for re-sentencing as to those two counts. In all other respects the judgment is affirmed.

So ordered.

Circuit Judge ROBB wishes it noted that his concurrence is not to be construed as agreement with the decisions in Scott v. United States, 135 U.S.App.D.C. 377, 419 F.2d 264 (1969); Coleman v. United States, 123 U.S.App.D.C. 103, 357 F.2d 563 (1965) (en banc), and Leach v. United States, 118 U.S.App.D. C. 197, 334 F.2d 945 (1964).

      . Appellant’s brief presents the following Statement of Issues Presented :
      1. W-.ether the trial court ei'red in basing a finding that appellant would not benefit from treatment under the Youth Corrections Act on:
      (a) Overcrowded conditions at Lorton Youth Center;
      (b) Appellant’s prior record ;
      (c) Appellant’s level of academic and employment achievement;

        (d) Appellant’s adult sentence in another case;
      (e) Appellant’s income at the time of the offense.
      2. Whether this Court can affirm a sentence under IS U.S.C. § 5010(d) when any one of the reasons given by the trial judge in support of a finding of no benefit is improper.

      . In Hartford the Fifth Circuit reversed a sentence under the Youth Corrections Act that was imposed for retribution not rehabilitation, the judge stating he regarded the general one-year maximum provided for the offense as insufficient.
      It also remanded a non-mandatory maximum sentence given to another defendant (who was also denied Youth Corrections Act sentence) on the basis of a rigid sentencing policy for the category of crime. The court held that “the process by which the judge determines the appropriate sentence must constitute the exercise of judicial discretion demanded in each particular case.” 489 F.2d at 655.
      For other decisions holding a rigid policy to be an impermissible failure to exercise discretion, see Scott v. United States, supra; United States v. Daniels, 446 F.2d 967, 971 (6th Cir. 1971); Woosley v. United States, 478 F.2d 139 (8th Cir. 1973).

      . The conviction of assault with a- dangerous weapon is set aside under United States v. Johnson, 155 U.S.App.D.C. 28, 475 F.2d 1297 (1973). As to the robbery counts, our action is appropriate in view of the fact that the District Court’s reduction of sentence was entered after the notice of appeal was filed, at a time when it was without jurisdiction to do so. United States v. Mack, 151 U.S.App.D.C. 162, 168-169, 466 F.2d 333, 339-340, cert. denied, 409 U.S. 952, 93 S.Ct. 297, 34 L.Ed.2d 223 (1972).


author: PER CURIAM:

text:
    Bertram D. WOLFE et al., Appellants, v. Robert F. FROEHLKE, Secretary of the United States Army.
    No. 73-1913.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 23, 1974.
    Decided Oct. 23, 1974.
    John H. F. Shattuck, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Melvin L. Wulf, New York City, and Hope Eastman, Washington, D. C., were on the brief, for appellants.
    William Kanter, Atty. Dept, of Justice, with whom Irving Jaffe, Acting Asst. Atty. Gen., and Earl J. Silbert, U. S. Atty., were on the brief for appellee. Leonard Schaitman, Atty., Dept, of Justice and Michael Katz, Asst. U. S. Atty., also entered appearances for appellee.
    Before LEVENTHAL and ROBB, Circuit Judges, and Davis, Judge, United States Court of Claims.

       Sitting by designation pursuant to 28 U.S.C. § 293(a).

   PER CURIAM:

This is an action under the Freedom of Information Act, 5 U.S.C. § 552, to obtain disclosure of the “Operation Keelhaul” file, generated in the 1940’s by Allied Force Headquarters (AFHQ) and now in the possession of the Department of Defense. The file concerns the forced repatriation of Russian citizens after World War II, and its disclosure is sought by three scholars who are presently conducting research on that subject. One of them, Julius Epstein, was unsuccessful in an earlier action to obtain disclosure of the file.

The matters at issue have been thoroughly canvassed by the District Court, which held that Appellants were not barred, as the Government argues, by principles of res judicata. The District Court, looking at the matter afresh, held that Appellants were not entitled to disclosure, for the documents requested fell within Exemption 1 of the Act, 5 U.S.C. § 552(b)(1). We affirm on both issues on the basis of the reasoning found in the opinion of the District Court. Wolfe v. Froehlke, 358 F.Supp. 1318 (D.D.C. 1973).

We should add that Appellants sought from this court a remand that would require Army personnel to review all the documents in the file to determine whether any of them originated outside AFHQ. Appellants themselves set forth, as a statement of fact about which there is no genuine issue, that “[t]he documents at issue were originated in 1946 and 1947 by an international organization, the Allied Force Headquarters.” (A. 33) It is immaterial for, present purposes whether the documents were gathered in the first instance by officers of the United States Army, of the British Army, or, for that matter, by the Yugoslavs. When the Army received the copies of the documents now in its custody, these documents were under the aegis of the AFHQ.

Appellants have also asked this court to defer consideration of this case pending the enactment of proposed amendments to § 552. The proposed amendments would explicitly authorize the courts to inspect documents in camera even where the agency claimed an exemption under § 552(b)(1). Since the basis of the § 552(b)(1) exemption claimed by Appellees is not the nature of the withheld documents, but British failure to reclassify them, in camera review could add nothing relevant to the determination of this case. No purpose would be served by deferring our decision.

Affirmed.

      . Indeed, the United States received only microfilm reproductions of the documents. The originals were given to the British government.

      . S. 2543, 93d Cong., 2d Sess. (1974); H.R. 12471, 93d Cong., 2d Sess. (1974).