author: TALBOT SMITH, Senior District Judge.

text:
    Clarence A. MOWER, Appellant, v. Samuel J. BRITTON et al., Appellees. Joe Alfred SIRCOLOUMB, Appellant, v. UNITED STATES BOARD OF PAROLE, Appellee. Gary Dwaine STALDER, Appellant, v. Loren E. DAGGETT, Warden, Appellee. Rudolph WILLIAMS, Appellant, v. UNITED STATES BOARD OF PAROLE et al., Appellees. Luther Anthony STEVENSON, Appellant, v. Loren E. DAGGETT, Warden, et al., Appellees.
    Nos. 73-1632, 73-1845, 73-1846, 73-1882 and 74-1172.
    United States Court of Appeals, Tenth Circuit.
    Sept. 4, 1974.
    Richard G. Singer, Newark, N. J. (Tom W. Neal, Denver, Colo., with him on the briefs), for appellants.
    Monti Belot, Asst. U. S. Atty., Topeka Kan. (Robert J. Roth, U. S. Atty., with him on the briefs), for appellees.
    Before SETH and HOLLOWAY, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, United States Senior District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, Senior District Judge.

We here consider five civil actions consolidated for briefing and argument on appeal. Since the actions originated as prisoners’ pro se claims for relief, counsel was appointed and directed to focus primarily on the common issue presented, namely, a parole applicant’s right to learn the reasons for the denial of his parole. Each of the petitioners before us, at the time of filing his asserted cause of action in the District Court for the District of Kansas, was confined in the United States Penitentiary, Leavenworth, Kansas.

Although in view of our resolution of this matter we deem it unnecessary to recite in detail the various pro se claims and charges made, bases of jurisdiction asserted, and forms of relief demanded, “the thrust of each petition,” as agreed by the government, “was that the petitioner was eligible for parole, yet had been denied parole” without having been given a statement of reasons therefor. In each case, the District Court declined all types of relief sought, including a statement of reasons for denial of parole, and dismissed the actions on the pleadings.

The appellants rely on a duality of arguments. It is first contended, citing United States ex rel. Johnson v. Chairman, Board of Parole, 500 F.2d 925 (2nd Cir. 1974), that the failure to give reasons constitutes a constitutional offense, a denial of due process. With respect to the process that is due in this situation, we agree with the opinion of the court in King v. United States, 492 F.2d 1337, 1343 (7th Cir. 1974) that “a substantial argument can be made that some modicum of due process should attend the denial of the expectation of conditional freedom on parole inasmuch as its termination after having been granted inflicts a ‘grievous loss’ of a ‘valuable liberty,’ ” Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). But the appellants present, as well, a statutory argument, that the refusal to give reasons constitutes a violation of the requirements of the Administrative Procedure Act, 5 U.S.C. §§ 551-559 (hereinafter the “Act”). In accordance with well established principles we will proceed first to a resolution of the statutory issue, construing the prisoners’ pro se petitions with respect thereto as actions in the nature of mandamus under 28 U.S.C. § 1361

We note at the outset of our statutory exploration that we are not plowing new ground, prior exhaustive examination having been had by the Seventh Circuit in King v. United States, supra,. It was there held that the Parole Board was an “agency” within the meaning of the Act, since it is an “authority of the Government of the United States” and is not otherwise excepted from the operation of the Act. It was further held that the action of the Parole Board came within the requirements of § 6(d) of the Act, 5 U.S.C. § 555(e), which provides:

Prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the grounds for denial. [emphasis added]

We agree with the Seventh Circuit’s reading of the act. The term “agency proceeding,” above employed, is defined as an agency process comprehending rule making, licensing and adjudications, the latter being an “agency process for the formulation of an order.” In view of the fact that an order “means the whole or a part of a final disposition * * * in a matter other than rule making * * it seems clear, that the decision whether to grant a prisoner parole is an adjudication” within the meaning of the Act.

We reject the Board’s argument, based on Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 236-237 (en banc), cert. denied, 375 U.S. 957, 84 S.Ct. 446, 11 L.Ed.2d 315 (1963), that the parole decision is not an “adjudication.” There the court was confronted with convicts whose parole had been revoked and who claimed “[i]n essence . . . they [were] entitled to a revocation hearing before the Board” at which certain procedural rights should be granted. Id. at 233. The court held that no hearing was required under the Act since the procedures in 5 U.S.C. §§ 554, 556-557 apply in terms only “to agencies which are required by their own statute of creation to adjudicate, after hearing.” Id. at 237 (emphasis omitted). 5 U.S.C. § 554(a). Section 6(d), on the contrary, applies to “any agency proceeding, whether or not formal or upon hearing.” It is to be noted that § 6(d) requires only a “brief statement of the grounds of denial” “as contrasted with the more elaborate findings which are customarily issued to support an order,” e. g. the requirements of 5 U. S.C. § 557(c) relating to decisions after a full hearing.

This “seldom heeded” section, we hold, is applicable to the situation presented and governs the action of the Parole Board. Not only is such the plain import of the text, as discussed above, but the result, also, is clearly consonant with the purposes of the Act and the purposes of the parole system. The framers of the Act were determined to bring the “fourth branch” of government — the administrative agencies— within the rule of law:

[The Act] is a bill of rights for the thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the Federal Government. It is designed to provide guaranties of due process in administrative procedure.

Whether or not the parole decision is subject to external review, the requirement that the Board give a brief statement of reasons for the denial of parole is certain to improve the quality and fairness of the decision. To require the decision-maker to articulate his reasons focuses in him an awareness that his discretion must be exercised in a principled and consistent way. A statement of reasons may promote, as well, the rehabilitative goals of the parole system, since informing the prisoner of the reasons for denying his parole is an obvious first step toward enabling him to conform his institutional conduct to proper standards, should such issue be before the Board. Finally, we note, paraphrasing the Court in Morrissey v. Brewer, 408 U.S. 471, 484, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), that society has a further interest in treating the potential parolee with basic fairness: fair treatment in parole denials will enhance the chance of rehabilitation by avoiding reactions to arbitrariness.

Such seem to be among the considerations which lie behind the Board’s newly promulgated regulations. Under this comprehensive revision of the Board’s procedures, “[e]ach inmate is permitted to have a representative to assist him at his parole hearing, parole decisions are accompanied by written reasons, and a two level administrative appeal process is provided.” These new procedures, now in effect in the Northeast Region, are, we are told, to be applied in other regions as personnel and staff become available, estimated to be in the fall of 1974.

We do not, we point out, purport to control discretion. What is required is the “brief statement” prescribed by the Act. Accordingly, the District Court’s orders of dismissal are reversed and the cases remanded for a determination of the threshold requirement for the application of § 6(d) of the Act, 5 U.S.C. § 555(e), whether or not a written application was made and, if so, for further proceedings consistent herewith.

With respect to Mr. Sigler’s representations as to the deleterious impact a decision requiring a statement of reasons would have on the imminent implementation of the Board’s new rules, we are satisfied that the District Court will provide in whatever Order it deems appropriate that no undue burden is placed upon the Board, consistent herewith. In view of the large number of parole applications made annually to a Board of limited staff and the lack of any indication in the record of bad faith in the interpretation and administration of the applicable law and regulations, however, our decision will not be applied retroactively; see Wolff v. McDonnell, 418 U.S. 539, 573, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Morrissey v. Brewer, 408 U.S. 471, 490, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1971).

It is so ordered.

      . Petitioners Sircoloumb and Stevenson allege that in response to their inquiries they received identical letters from the Board of Parole which state, in part:
      AVe can well understand your concern over denial of parole; however, since the decision of the Board constitutes the thinking of the majority of the Members, it is impossible to specify what factors entered into each decision. AAre, therefore, are unable to give reasons for the Board’s final judgment in any case.
      See Kenneth Culp Davis, Discretionary Justice : A Preliminary Inquiry 128 (1969) for a description of the Board’s decision-making process in this regard.

      . 28 U.S.C. § 1361 provides:
      The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

      . The United States Board of Parole consists of eight members appointed by the President by and with the advice and consent of the Senate. 18 U.S.C. § 4201.

      . 5 U.S.C. § 551(1) provides :
      “agency” means each authority of the Government of the United States, * :|s *

      . 5 U.S.C. § 551(12).

      . 5 U.S.C. § 551(7).

      . 5 U.S.C. § 551(6).

      . See also the legislative history found in 92 Oong.Ree. 5649 (1946) : “ ‘Order’ and ‘adjudication’ as defined * * * embrace all of the decisions that agencies make in matters other than rule making.” (Congressman Walter).

      . That the Act did not mandate administrative hearings unless otherwise provided by law was one of the key departures from the provisions of the Walter-Logan bill which had been vetoed by the President. S.Rep. No. 752, 79th Cong., 1st Sess. 6 (1945).

      . Both the Senate and House Reports annotating § 6(d) contain the following language:
      This subsection affords the parties in any agency proceeding, whether or not formal or upon hearing, the right to prompt action upon their requests, immediate notice of such action, and a statement of the actual grounds therefor. The latter should in any case be sufficient to apprise the party of the basis of five denial. * * * [Emphasis added |
      S.Doc.No.248, 79th Cong., 2d Sess. 206, 265 (1946). See Johnson, Federal Parole Procedures, 25 Ad.L.Rev. 459, 478-80 (1973).

      . S.Rep.No.752, 79th Cong., 1st Sess. 41 (1945) (letter of Attorney (leneral Clark).

      . Kenneth Culp Davis, Discretionary Justice, A Preliminary Inquiry 104 (1969).

      . Note also, in this regard, the views of Professor Davis who finds (he Board’s practices a “clear violation” of § 6(d). Id. at 129 & n. 49.

      . 92 Cong.Rec. 2149 (1946) (remarks of Senator McCarran).

      . 39 Fed.Reg. 20028-29 (1974). Hee Administrative Conference Recommendation 72-3: Procedures of the United States Board of Parole (Adopted June 9, 1972), 25 Ad.L.Rev. 531, 534 (1973) ; DeGostin & Hoffman, Administrative Review of Parole Decisions, 38 Fed.Prob., June 1974, at 24; Johnson, Federal Parole Procedures, 25 Ad. L.Rev. 459, 484-6 (1973) ; see also Parsons-Lewis, Due Process in Parole-Release Decisions, 60 Calif.L.Rev. 1518 (1972) ; Note, Judicial Application of Procedural Due Process in Parole Release and Revocation, 11 Am.Crim.L.Rev. 1017 (1973).

      . Affidavit of Mr. Maurice Sigler, Chairman of the United States Board of Parole, admitted by us as part of the record on appeal.

      . An area that does not include Leavenworth, Kansas.

      . We note that the Board requires that prisoners complete written applications for parole, 28 C.F.R. § 2.12 (1973), and that some of the plaintiffs herein have alleged they made specific written requests for a state- ' ment of reasons. In view of the summary disposition below, however, we deem it appropriate to remand for a resolution of these and other factual issues posed by the pleadings.


source: Caselaw Access Project

author: SWYGERT, Chief Judge.

license: Public Domain

text:
    Jill Mary KOHR, Executrix of the Estate of Robert H. Kohr, Deceased, Plaintiff-Appellee, v. ALLEGHENY AIRLINES, INC., and United States of America, Defendants-Appellants, v. FORTH CORPORATION et al., Third-Party Defendants-Appellees.
    Nos. 73-1392, 73-1393.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 14, 1974.
    Decided Sept. 20, 1974.
    Rehearing and Rehearing En Bane Denied Nov. 26, 1974.

      Walter E. Rutherford, New York City, and Emerson Boyd, Indianapolis, Ind. (Robert L. Alpert, Robert B. Haserot, New York City, and William V. Hutch-ens, Indianapolis, Ind., on the brief), for Allegheny Airlines, Inc., and GECC Leasing Corp.
    R. Stanley Lawton and Arthur P. Kal-leres, Indianapolis, Ind., for Brookside Corp.
    James E. Rocap, Jr., and Thomas P. Ledgerwood, Indianapolis, Ind., for Forth Corp.
    Floyd W. Burns and Richard R. McDowell, Indianapolis, Ind., for Lee Le-May, Administrator.
    Harlington Wood, Jr., Asst. Atty. Gen., Washington, D. C., Stanley B. Miller, U. S. Atty., Indianapolis, Ind., Morton Hollander and Michael H. Stein, Washington, D. C., for the United States.
    Before SWYGERT, Chief Judge, KILEY, Senior Circuit Judge, and HOFFMAN, Senior District Judge.

      . Judge Kiley heard oral argument in these appeals, but he died on September 6, 1974 before he considered this opinion.

      . Senior Judge Julius J. Hoffman of the United States District Court for the Northern District of Illinois is sitting by designation.

   SWYGERT, Chief Judge.

Defendants-appellants Allegheny Airlines, Inc. and the United States, appeal from the dismissal of their cross-claims and third-party complaints for indemnity and contribution against defendants-appellees Brookside Corporation (Brook-side), Forth Corporation (Forth is a wholly-owned subsidiary of Brookside), and the estate of Robert W. Carey. The instant actions arise out of a mid-air collision on- September 9, 1969, in the airspace over Fairland, Indiana between an Allegheny Airlines DC-9-31 jet aircraft and a Piper Cherokee aircraft piloted by Robert W. Carey and owned by Forth. The events surrounding the collision are set out in detail in the companion case to this action. Allegheny Airlines, Inc. and GECC Leasing Corp. v. United States of America, et al., 504 F.2d 104 (7th Cir. 1974), and need only be briefly recounted here.

The Allegheny aircraft was operated as Flight No. 853 en route from Cincinnati, Ohio to Indianapolis, Indiana. At the time of the collision Flight No. 853 was flying under an instrument flight rules clearance from Cincinnati to Indianapolis and was receiving and adhering to air traffic control radar directions from an air traffic controller employed by the Federal Aviation Administration at the Indianapolis Approach Control facility located at Indianapolis’ Weir Cook Airport. The Piper Cherokee aircraft was operated by Carey, a student pilot, under visual flight rules. At the time of the collision Carey was engaged in a solo cross-country flight from Brook-side Airport, MeCordsville, Indiana to Bakalar Air Force Base, Columbus, Indiana. As a result of the mid-air collision both aircraft were totally destroyed and all eighty-three occupants were killed.

Subsequent to the accident, wrongful death actions were commenced on behalf of the estates of all the deceased passengers save one, the estates of three of the four Allegheny crew members, and the estate of Robert W. Carey. In addition, property damages suits were initiated to recover for the destruction of the two aircraft. All of these suits were commenced in various federal district courts on the basis of diversity of citizenship as to defendants Allegheny, Brookside, Forth, and the estate of Carey, and the Federal Tort Claims Act as to the defendant United States. The Judicial Panel on Multidistrict Litigation assumed jurisdiction over the various ac- \ tions commenced outside of Indiana and pursuant to 28 U.S.C. § 1407 transferred them to the United States District Court for the Southern District of Indiana for the purpose of supervision of the pretrial discovery. In re Mid-Air Collision Near Fairland, Indiana, 309 F.Supp. 621 (Jud.Pan.Mult.Lit.1970). Subsequent -to the section 1407 transfer, the district court judge issued orders pursuant to 28 U.S.C. § 1404 transferring eases from respective transferor forums to the United States District Court for the Southern District of Indiana and consolidated those cases with other companion cases that had been initially commenced in the Indiana district court. By the time of trial Allegheny and the United States had filed cross-claims and third-party complaints against Brookside, Forth, and the estate of Carey seeking indemnity and contribution.

The first group of passenger cases was assigned to trial on February 22, 1972. The district judge severed all cross-claims and third-party complaints between the parties and deferred resolution of those issues until a future date. After the commencement of the February trial which involved as defendants Allegheny, the United States, Brookside, Forth, and the estate of Carey, an agreement was arrived at between the United States and the liability insurers of Allegheny for a pro-rata formula to be utilized between them in disposing of all cases, whether by settlement or judgment. The defendants Forth, Brookside, and estate of Carey were not parties to, and did not contribute anything .to or under the agreement. Thereafter, on motion of plaintiffs and defendants Allegheny and the United States, the first group of passenger cases on trial were terminated and all claims, cross-claims, and third-party complaints were dismissed without prejudice pending a hearing on the reasonableness of the compromise. The district court found the compromise to be reasonable and accordingly Allegheny’s insurers and the United States proceeded to settle the remaining passenger cases.

On December 5, 1972 the district court entered an order dismissing all actions including the plaintiffs’ complaints as well as defendants’ cross-claims, third-party complaints, and counterclaims. All such claims were to be dismissed with prejudice as of January 5, 1973. Both Allegheny and the United States moved to vacate the December 5 entry objecting to the dismissal with prejudice of their claims over for indemnity and contribution against Forth, Brookside, and the estate of Carey. At a hearing on January 5, 1973 the district judge vacated its prior order of December 5, 1972 and directed that the plaintiffs’ actions were to be dismissed without prejudice. At the same time the district judge allowed defendants Forth, Brookside, and the estate of Carey to file additional paragraphs of their answer pleading the defenses of res judicata, collateral estoppel, voluntary payment, accord and satisfaction, and failure to state a claim for relief in that no right to indemnity and contribution existed under Indiana law.

Thereafter, the court proceeded to grant the motions of Forth, Brookside, and the estate of Carey to dismiss the claims by Allegheny and the United States for indemnity and contribution by virtue of the application of Indiana law. In addition, the court granted summary judgment to Brookside, Forth, and the estate of Carey on the basis of the affirmative defenses of voluntary payment and accord and satisfaction in that the memorandum of agreement between Allegheny’s liability insurers and the United States and the settlement of actions pursuant thereto constituted voluntary payments and accords and satisfactions. The court also granted summary judgment to Brookside on the separate defenses of res judicata and collateral es-toppel as a result of the judgment entered in Allegheny Airlines, Inc. and GECC Leasing Corp. v. United States of America, et al., in which it had been previously held that Brookside Corporation was not responsible for the torts committed by its wholly-owned subsidiary Forth Corporation.

I

Allegheny and the United States raise various issues in an appeal, to which we address the following: (1) whether the district court erred in dismissing the cross-claims and third-party complaints for indemnity and contribution for failure to state claims upon which relief may be granted; (2) whether the district court correctly granted summary judgment to Brookside on the basis of res judicata and collateral estoppel; (3) whether the district court properly entered summary judgment on the basis that settlement of plaintiffs’ claims by Allegheny and the United States constituted voluntary payment which barred any claims by Allegheny and the United States against the defendants; (4) whether the district court erred in granting summary judgment to Forth, Brook-side, and the estate of Carey on the ground that the agreement between Allegheny’s liability insurers and the United States constituted an accord and satisfaction thereby barring any claim for indemnity and contribution; and (5) whether the district court erred in entering an order dismissing all plaintiffs’ claims without prejudice.

In view of our decision in the companion case of Allegheny Airlines, Inc. and GECC Leasing Corp. v. United States of America, et al., 504 F.2d 104 (7th Cir. 1974), Allegheny and the United States are precluded on the basis of the doctrines of res judicata and collateral estoppel from further pursuit of their claims for contribution and indemnity from the defendant Brookside. Accordingly, we affirm the district court on that issue. With respect to the remaining issues, however, we reverse and remand to the district court for trial.

II

Allegheny contends that it was error for the district court to dismiss its cross-claims and third-party complaints for indemnity and contribution. The district court held that Indiana law was controlling on these claims and that under Indiana law there could be no contribution and indemnity under that state’s law. Allegheny urges that a federal rule of contribution and indemnity should govern in the instant action. Failing the application of a federal law of contribution Allegheny contends that in view of the multiplicity of state jurisdictions involved, with the various plaintiffs instituting actions in numerous states other than Indiana, the trial judge should have conducted an evidentiary hearing to facilitate a proper choice of law analysis. Had the district judge done so, it is claimed that jurisdictions other than Indiana would be found to have a more substantial interest in having their laws on contribution and indemnity applied. In addition, Allegheny contends that even assuming Indiana law controls, the district court misapplied the rules on contribution and indemnity.

Were it necessary, we would be inclined to agree with Allegheny that the district judge failed to engage in an adequate conflict of law analysis and that he erred on the application of Indiana law on contribution and indemnity. We need not reach these issues, however, for we agree with Allegheny that there should be a federal law of contribution and indemnity governing mid-air collisions such as the one here.

Ill

The basis for imposing a federal law of contribution and indemnity is what we perceive to be the predominant, indeed almost exclusive, interest of the federal government in regulating the affairs of the nation’s airways. Moreover, the imposition of a federal rule of contribution and indemnity serves a second purpose of eliminating inconsistency of result in similar collision occurrences as well as within the same occurrence due to the application of differing state laws on contribution and indemnity. Given the prevailing federal interest in uniform air law regulation, we deem it desirable that a federal rule of contribution and indemnity be applied.

That the federal interest in regulating airways is predominant was long ago recognized by Justice Jackson in Northwest Airlines v. Minnesota, 322 U.S. 292, 303, 64 S.Ct. 950, 956, 88 L.Ed. 1283 (1944):

Students of our legal evolution know how this Court interpreted the commerce clause of the Constitution to lift navigable waters of the United States out of local controls and into the domain of federal control. Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23, to United States v. Appalachian Power Co., 311 U.S. 377 [61 S.Ct. 291, 85 L.Ed. 243]. Air as an element in which to navigate is even more inevitably federalized by the commerce clause than is navigable water. Local exactions and barriers to free transit in the air would neutralize its indifference to space and its conquest of time.
Congress has recognized the national responsibility for regulating air commerce. Federal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxis onto a runway it is caught up in an elaborate and detailed system of controls. It takes off only by instruction from the control tower, it travels on prescribed beams, it may be diverted from its intended landing, and it obeys signals and order. Its privileges, rights, and protection, so far as transit is concerned, it owes to the Federal Government alone and not to any state government.

With the passage of the Federal Aviation Act of 1958, 49 U.S.C. § 1301 et seq., Congress expressed the view that the control of aviation should rest exclusively in the hands of the federal government. In section 1108 of the Act, 49 U.S.C. § 1508(a), it is clearly provided that:

(a) The United States of America is declared to possess and exercise complete and exclusive national sovereignty in the airspace of the United States, including the airspace above all inland waters and the airspace above those portions of the adjacent marginal high seas, bays, and lakes, over which by international law or treaty or convention the United States exercises national jurisdiction. Aircraft of the armed forces of any foreign nation shall not be navigated in the United States, including the Canal Zone, except in accordance with an authorization granted by the Secretary of State.

The explicit objective of the Act is to foster the development of air commerce. 49 U.S.C. § 1346. To that end, it has been recognized that the principal purpose of the Act is to create one unified system of flight rules and to centralize in the Administrator of the Federal Aviation Administration the power to promulgate rules for the safe and efficient use of the country’s airspace. United States v. Christensen, 419 F.2d 1401 (9th Cir. 1969); Air Line Pilots Association v. Quesada, 276 F.2d 892 (2d Cir. 1960). When the notion of federal preemption over aviation is viewed in combination with the fact that this litigation ensues from a mid-air collision occurring in national airspace, that the Government is a party to the action pursuant to the Federal Tort Claims Act (28 U.S.C. § 1346(b) et seq.), and that this litigation has since its inception been subject to the supervision of the Judicial Panel created by the Multidistrict Litigation Act (28 U.S.C. § 1407 et seq.), there is no perceptible reason why federal law should not be applied to determine the rights and liabilities of the parties involved. The interest of the state wherein the fortuitous event of the collision occurred is slight as compared to the dominant federal interest. Accordingly, the rights and liabilities of Allegheny and the United States are peculiarly federal in nature and are to be governed by a federal rule of contribution and indemnity.

IV

Having determined that a federal rule of contribution and indemnity among joint tort-feasors should control in aviation collisions, we reject as being outmoded and entirely unsatisfactory, the contention that the federal rule should be one of “no contribution.” We agree that “[tjhere is an obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were equally, unintentionally responsible, to be shouldered on to one alone, according to the accident of a successful levy of execution, the existence of liability insurance, the plaintiffs’ whim or spite, or his collusion with the other wrongdoer, while the latter goes' scot free.” Prosser, Law of Torts, § 50 (4th-ed. 1971).

In our judgment the better rule is that of contribution and indemnity on a comparative negligence basis. Under such an approach the trier of fact will determine on a percentage basis the degree of negligent involvement of each party in the collision.- The loss will then be distributed in proportion to the allocable concurring fault. In allocating the loss where as here that amount involves a settlement and not a judgment, the trier of fact must also establish what amount would be a reasonable settlement under the circumstances. On reaching such an amount each party contributes according to his degree of fault.

Allegheny and the United States contend that the district court improperly entered summary judgment against them with respect to defenses raised by the defendants claiming voluntary payment, and accord and satisfaction. Also it is contended by Allegheny and the United States that the district court erred in entering an order dismissing all plaintiffs’ claims without prejudice.

As to the defense of voluntary payment, the defendants urge that the settlement of plaintiffs’ claims by Allegheny and the United States constituted a voluntary payment which barred any claims by them against the defendants. We disagree for it is a well recognized policy that settlements are to be encouraged, and we have previously held that a voluntary settlement does not bar a subsequent suit for indemnity. Chicago, Rock Island & Pacific Ry. Co. v. United States, 220 F.2d 939, 941 (7th Cir. 1955). Moreover, we note that in applying the federal rule of contribution and indemnity the trier of fact is to make a determination as to what was a reasonable amount at which to settle. Such a determination would necessarily take into consideration the voluntary nature of the settlement.

We find to be without worth defendants’ contention that the agreement between Allegheny’s liability insurers and the United States constituted an accord and satisfaction thereby barring any claims for indemnity and contribution. There was no contract between Allegheny or the United States and the defendants. Moreover, it cannot be claimed that the defendants were the intended beneficiaries of any agreement between Allegheny and the United States.

Lastly, we agree with Allegheny and the United States that it was error for the district court to enter the order of January 5, 1973 dismissing all of the plaintiffs’ complaints without prejudice, the exact opposite of what the parties had agreed to in settlement. Under the circumstances it was an abuse of discretion for the district court to effectively change the settlement from one providing for dismissal of plaintiffs’ complaints with prejudice to one providing for the dismissal without prejudice.

Affirmed in part; reversed in part and remanded for a new trial pursuant to Circuit Rule 23.

      . In view of the aforementioned predominant federal interest in formulating a rule of contribution and indemnity we are of the view that the Federal Tort Claims Act is not an obstacle to the application of such a rule to the United State’s claims. In addition we find no merit in defendants’ argument that Allegheny and the United States are estopped to assert the invalidity of the dismissal of their cross-claims and third-party complaints.


author: SPRECHER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Dennis M. SORENSON, Defendant-Appellee.
    No. 74-1068.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 17, 1974.
    Decided Oct. 21, 1974.
    Robert Henry Plaxico, Atty. U. S. Dept, of Justice, App. Section, Crim. Div., Washington, D. C., John O. Olson, U. S. Atty., Madison, Wis., for plaintiff-appellant.
    Robert W. Aagaard, Madison, Wis., for defendant-appellee.

      Before SPRECHER and TONE, Circuit Judges, and PERRY, Senior District Judge.

       Senior District Judge Joseph Sam Perry of the Northern District of Illinois is sitting by designation.

   SPRECHER, Circuit Judge.

The question here is whether the government can appeal the district court’s granting of defendant’s motion for judgment of acquittal following a jury’s guilty verdict where the government failed to prove an essential element of the crime, which was judicially noticeable but not called to the court’s attention.

I

The defendant, Dennis M. Sorenson, was indicted for wilfully and knowingly making a false statement in order to acquire a firearm from a licensed dealer, in that he denied that he had ever been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. §§ 922(a)(6), 924(a).

Upon a trial before a jury the government introduced a Form 4473 (Firearms Transaction Record) signed by defendant and showing the negative response to the question of whether he had been convicted of a crime punishable by imprisonment for a term exceeding one year. The government also introduced a certificate of conviction and other documents showing that defendant was convicted in the Dane County, Wisconsin Court on July 3, 1968 of “aiding and abetting in a commission of a felony (burglary) in violation of [Wisconsin statutes] sections 943.10(1) (a) and 939.-05(1),” for which he was sentenced to prison for a term of not more than one year. The government did not prove nor attempt to prove that a person convicted under the sections of the Wisconsin statutes described in the documents introduced in evidence could be sentenced to imprisonment for a term exceeding one year and for as long as not to exceed ten years.

When the government rested its case in chief and before the defendant commenced his defense, his counsel made several motions, to which the court responded :

I will reserve a ruling on the motion for the judgment of acquittal.
* * * * * *
However, it is an essential element of this case which the Government must prove that the defendant was on one occasion convicted of a crime punishable by a term of more than one year.

Despite the clear warning from the court, the government did not at that point seek to reopen its case, did not in its cross examination of the defendant elicit any proof of the potential punishment for defendant’s prior crime, and offered no rebuttal evidence.

The court commented when later passing upon the defendant’s motion for acquittal :

[N]o evidence was received that the crime for which the defendant had been convicted was punishable by imprisonment for a term exceeding one year. In truth, it is clear that at the time of defendant’s earlier conviction of burglary, the Wisconsin Statutes did provide for punishment not to exceed ten years. During the trial, the court was not requested to take judicial notice of the Wisconsin Statute providing for this maximum penalty; the court did not do so; the jury was not instructed that the court had taken judicial notice of this maximum penalty (which it had not).

During its deliberations, the jury submitted a note to the judge inquiring;

Could the sentence for either of the previous convictions for aiding and abetting in a commission of a felony (Burglary) have exceeded one year?
The judge answered:
You are instructed that I am not permitted to respond to this question. You must arrive at your verdict on the basis of the instructions I have given you.

The jury returned a verdict of guilty. The defendant moved “for an order granting a judgment of acquittal notwithstanding the verdict of the jury.”

The court ordered that “[o]n the basis of the entire record herein, and for the reason that no evidence of an essential element of the offense was received at trial, the defendant’s motion for a judgment of acquittal, made at the close of the government’s case and renewed after verdict, is hereby granted ft

The government appealed. The defendant has contended that the appeal should be dismissed because the double jeopardy clause bars an appeal by the government and in any event the Criminal Appeals Act, 18 U.S.C. § 3731 does not authorize an appeal from a judgment of acquittal.

II

In United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896), the Supreme Court held that a “verdict of acquittal was final, and could not be reviewed . . . without putting [the defendant] twice in jeopardy, and thereby violating the constitution.”

In Fong Foo v. United States, 369 U. S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962), the trial court had directed a verdict of acquittal while hearing the fourth government witness, on the ground of improper conduct by the prosecutor and lack of credibility in the prosecution witnesses who had testifiéd up to that point. The Court of Appeals granted a writ of mandamus vacating the judgment of acquittal. The Supreme Court reversed on the basis of double jeopardy.

The petitioners were tried under a valid indictment in a federal court which had jurisdiction over them and over the subject matter. The trial did not terminate prior to the entry of judgment, as in Gori v. United States, 367 U.S. 364, [81 S.Ct. 1523, 6 L.Ed. 2d 901.] It terminated with the entry of a final judgment of acquittal as to each petitioner. The Court of Appeals thought, not without reason, that the acquittal was based upon an egregiously erroneous foundation. Nevertheless, “[t]he verdict of acquittal was final .... [Citing Ball.T

369 U.S. at 143, 82 S.Ct. at 672.

In United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970), the defendant was found guilty by a jury of failing to submit to induction into the armed forces. The trial judge, in granting what he termed a motion in arrest of judgment, purported to find the indictment insufficient but also drew upon his evaluation of the defendant’s demeanor on the stand. The Supreme Court concluded that “[t]he court below clearly went beyond the ‘face of the record’ [that is, the indictment] in reaching its decision” and “surely the indictment alleged the necessary elements of an offense.” 399 U.S. at 283, 287, 90 S.Ct. at 2126, 2128. After cautioning that “[w]e, of course, intimate no view concerning the correctness of the legal theory by which the District Court evaluated the facts developed at the trial,” the Court held that “this was not a decision arresting judgment” but “was in fact an acquittal.” 399 U.S. at 270, 288, 90 S.Ct. at 2119, 2129.

Although the government can appeal even when a dismissal is by arrest of judgment after a guilty verdict, a judgment for the defendant, however, denominated, is an acquittal, as held in Sisson, if the trial judge relies upon what occurred at the trial instead of confining himself to the indictment. The Sisson Court spelled this out in some detail.

First, in this case it was the judge-— not the jury — who made the factual determinations. This difference alone does not support a legal distinction, however, for judges, like juries, can acquit defendants, see Fed.Rule Crim. Proc. 29. Second, the judge in this case made his decision after the jury had brought in a verdict of guilty. Rules 29(b) and (c) of the Federal Rules of Criminal Procedure, however, expressly allow, a federal judge to acquit a criminal defendant after the jury “returns a verdict of guilty.” And third, in this case the District Judge labeled his post-verdict opinion an arrest of judgment, not an acquittal. This characterization alone, however, neither confers jurisdiction on this Court, . . . nor makes the opinion any less dependent upon evidence adduced at the trial. In short, we see no distinction between what the court below did, and a post-verdict directed acquittal.

399 U.S. at 290, 90 S.Ct. at 2129.

In the present case the trial judge did the same things as the judge in Sisson with the exception that he labeled his post-verdict judgment “a judgment of acquittal.” We have not been directed to any case nor have we found one where the reverse of Sisson was accomplished — that is, where an acquittal was held to be in fact an arrest of judgment. Indeed, the Court ih Sisson pointed out that an arrest of judgment is based on error appearing on the face of the record, and not on the evidence offered at trial. 399 U.S. at 280-282, 90 S.Ct. 2117. Here the judgment was based on what occurred at trial and not on matter appearing on the face of the record. Therefore, under Ball and its progeny, the judgment of acquittal here is probably conclusive and means that the defendant has been placed in jeopardy.

However, inasmuch as Sisson and the earlier cases were handed down prior to the 1971 amendment to the Criminal Appeals Act and therefore decided in the context of the substantially different language existing at those times, it is prudent to go somewhat beyond those cases. The amended language reads simply that “[i]n a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment . . . except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.”

A current analysis of the cases decided since the amendment attempts to reconcile them by “[djefining acquittal as a disposition involving a favorable factual resolution. . . .” Note, Government Appeals of “Dismissals” in Criminal Cases, 87 Harv.L.Rev. 1822, 1841 (1974). This is as sound a test as any inasmuch as even though the amended statute appears to limit government appeals to dismissals of indictments, the cases before and since the amendment seem to convert any dismissal, however labeled, which is not an acquittal based on a factual resolution into a dismissal of the indictment and hence appealable. Id. at 1822-41.

In the present case the indictment included all the elements of the offense but the government failed to prove one of them — namely the requirement that the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year.

In United States v. Esposito, 492 F.2d 6 (7th Cir. 1973), cert. denied, 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 760 (1974), we held that the granting of a motion in arrest of judgment was appealable in a drug possession case where “there was neither allegation nor proof of a connection with interstate commerce.”

Further, it is clear from the order that the court concluded that the fatal defect in the prosecution lay in the indictment’s failure to state and the statute’s failure to require a nexus with interstate commerce which would justify federal regulation. The fact that the prosecution failed to prove such a connection, though alluded to in the order, was of no significance to the actual basis for the decision. The order was neither based upon nor limited in application to the facts of the case. Appeal, therefore, is not barred by the double jeopardy clause of the fifth amendment.

492 F.2d at 9.

The “factual resolution” involved in the acquittal here was the failure of the government to prove all the elements of the offense. If the jury had acquitted the defendant for that reason there would be no issue of appealability. Under Sisson the fact that the judge rendered the acquittal does not alter the situation. In any event, the judge’s action in the present case was not tied into the indictment in any manner.

The government has argued that the trial court was bound to take judicial notice of the missing element or that we can do so on appeal, citing United States v. McCormick, 309 F.2d 367 (7th Cir. 1962), cert. denied, 372 U.S. 911, 83 S.Ct. 724, 9 L.Ed.2d 719 (1963). In McCormick we affirmed a conviction after a bench trial. Therefore we had no occasion to consider the question of government appealability or double jeopardy.

Here the government did not request the court to take judicial notice, supplied the court with no information regarding the fact to be noticed, gave the defendant no opportunity to confront or rebut the fact to be noticed and submitted no instruction for the jury in regard to the fact to be noticed, and, indeed, the court gave none.

We think the better practice in this case would have been for the trial judge to take judicial notice sua sponte of the terms of the Wisconsin statute, about which there could not conceivably be any question. He was not, however, required to do so by the rules of evidence. If he does not do so and then acquits the defendant, the judgment of acquittal means that jeopardy has attached. The government is not granted the right to appeal under 18 U.S.C. § 3731 under those circumstances. If there can be no appeal, we obviously have no jurisdiction to take our own judicial notice of the omitted fact.

The appeal is dismissed for lack of jurisdiction on the ground that the double jeopardy clause prohibits further prosecution.

      . Section 922(a)(6) declares it unlawful to acquire a firearm by making a false written statement intended or likely to deceive a licensed dealer. Section 922(d)(1) provides in part that “[i]t shall be unlawful for any . . . licensed dealer ... to sell . . . any firearm ... to any person knowing or having reasonable cause to believe that such person . . . has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year. . . .”
      The indictment charged in part that the defendant “completed Department of Treasury Form 4473 (Firearms Transaction Record) and answered ‘No’ to the question pertaining to whether or not he had ever been convicted of a crime punishable by imprisonment for a term exceeding one year, wherein, in fact he had been so convicted and was represented by counsel when so convicted of such an offense. . . .”

      . 18 U.S.C. § 3731 provides in part:
      In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

      . United States v. Green, 350 U.S. 415, 76 S.Ct. 522, 100 L.Ed. 494 (1956) ; United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955) ; United States v. Esposito, 492 F.2d 6 (7th Cir. 1973), cert. denied, 414 U.S. 1135, 94 S.Ct. 879, 38 L. Ed.2d 760 (1974).

      . 18 U.S.C. § 3731. See note 2, supra.

      . A bill currently being considered by Congress as rules of evidence for United States Courts provides that a court “shall” take judicial notice if requested by a party and supplied with the necessary information and in other situations “may” take judicial notice. H.It. 5463, Rep. No. 93-650, 93d Cong., 1st Sess., Rule 201(c) and (d). The proposed bill also provides that a party is entitled “to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed.” Id. Rule 201(e). Finally, “ [i]n a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.” Id. Rule 201(g). Cf. Shapleigh v. Mier, 299 U.S. 468, 475, 57 S.Ct. 261, 81 L.Ed. 355 (1937).


author: GIBBONS, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Angelo V. GRACI, Appellant.
    No. 74-1158.
    United States Court of Appeals, Third Circuit.
    Submitted on Briefs Sept. 6, 1974.
    Decided Oct. 9, 1974.
    Gilbert E. Petrina, Harrisburg, Pa., for appellant.
    S. John Cottone, U. S. Atty., Laurence M. Kelly, Asst. U. S. Atty., Scranton, Pa., for appellee.
    Before SEITZ, ' GIBBONS and GARTH, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

On February 1, 1972 the grand jury in the Middle District of Pennsylvania returned Indictment No. 15091 containing three counts. In Count I it charged James N. Markwell and Angelo Y. Graci with a substantive violation of 18 U.S.C. §§ 641 and 642, sale of stolen government property. The property consisted of depressant or stimulant drugs, and the sale was allegedly made on April 26, 1967 at Lemoyne, in Cumberland County. In Count II it charged a similar offense at the same place on October 13, 1967. In Count III it charged that in violation of 18 U.S.C. § 371, beginning on April 26, 1967 and continuing to December 31, 1968, Markwell and Graci conspired to violate 18 U.S.C. § 641 by stealing drugs from the Defense Depot, Mechanicsburg, Pennsylvania, and selling them to one James L. Hayes in the vicinity of Lemoyne, Pennsylvania. The two substantive offenses were listed among the overt acts in the conspiracy count.

On the same day as it returned Indictment No. 15091 the grand jury returned Indictment No. 15089 containing a single count charging that on November 13, 1969 at Highspire, Dauphin County, Angelo V. Graci delivered seven tablets of Phenmetrazine in violation of 21 U.S.C. §§ 360a(b) and 331(q)(2), which were provisions of the Food, Drug and Cosmetic Act since repealed. The November 13, 1969 transaction was in no way connected with the substantive or conspiracy counts of Indictment No. 15091 since government ownership of the seven tablets is not an element of the offense charged in Indictment No. 15089 and the fact that the stolen property was a stimulant or depressant drug is not an element of the offenses charged in Indictment No. 15091. It is clear that the November 13, 1969 offense charged in Indictment No. 15089 is not of the same or similar character or based on the same act or transaction as the substantive offenses charged in No. 15091. Nor can the November 13, 1969 offense be construed as part of a common scheme or plan with the offenses charged in No. 15091 since that scheme or plan was alleged in the indictment to have ended on December 31, 1968. Thus it is clear that the substantive offense charged in No. 15089 could not under Rules 8(a) or 8(b), Fed.R.Crim.P. be joined in a single indictment with the substantive and conspiracy counts of No. 15091.

During the pretrial stages of both indictments Graci’s attorney and an Assistant United States attorney filed a stipulation that Indictments No. 15089. and 15091 be consolidated for the purpose of pretrial motions and pleadings. There was no stipulation that the indictments could be tried together. By an ex parte order dated February 22, 1973 the district court set both cases down for trial on March 5, 1973. Defendant Graci objected, and by order dated March 1, 1973 the district court consolidated the indictments for trial and denied defendants’ motion for a severance. This order was erroneous. Rule 13, Fed.R.Crim.P. provides that:

“The court may order two or more indictments or informations or both to be tried together if the offenses, and the defendants if there is more than one, could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under such single indictment or information.”

The cases proceeded to trial as scheduled on March 5, 1973 and the government offered testimony in support of both charges. Because the government was unable to connect the drugs described in Indictment No. 15091 with the Mechanicsburg Defense Depot, the court granted defendants’ motions for judgment of acquittal on that indictment at the end of the government’s case. The arguments of counsel at the end of the government’s case took place in chambers and were not transcribed (Tr. at 233). Apparently, however, the severance motion was renewed, but the court, instead, instructed the jury with respect to the evidence offered on Indictment No. 15091:

“These matters are now out of the case and I direct you to purge and remove from your minds any testimony or any evidence concerning those incidents and to confine your thinking now to this specific charge, and that is, that on November 13th, 1967, [sic] the defendant, Angelo Graci, did knowingly, wilfully and unlawfully deliver and dispose of depressant or stimulant drugs, that is, seven tablets containing phenmetrazine, in violation of 21 United States Code, Section 360(a) sub section (b). In other words, it would be improper for you to attempt in determining the guilt or innocence of Mr. Graci to even recall any testimony concerning what occurred on April 26th, 1967, in this parking lot. It would be improper for you to conclude that there were some thefts' or some losses at Mechanics-burg and somehow this is indicative of the guilt of Mr. Graci on this particular charge.” Tr. at 235-36.

Graci then testified in his defense that he had some diet pills for his own use and that at the request of Joan Hayes he gave her some. His direct testimony, if believed, probably would have negated wilfullness. On cross-examination it was brought out, over objection, that he had first met Joan Hayes through James Markwell, the co-defendant in Indictment No. 15091. It was also brought out that Joan Hayes was in the company of Agent Shumard who was investigating the Mechanicsburg Depot drug shortages. The jury found Graei guilty on Indictment No. 15089.

Graei made a motion for a new trial on a number of grounds, including the improper joinder for trial of the separate indictments and the failure to sever upon entry of the judgment of acquittal on Indictment No. 15091. The district court, in an opinion denying the motion for a new trial, pointed out that it was proper under Rule 8(b), Fed.R.Crim.P. to join both Markwell and Graei in Indictment No. 15091, and that a motion for a severance pursuant to Rule 14, Fed.R.Crim.P. requires a showing of prejudice. The opinion does not discuss Rule 8(a) or Rule 13.

We reverse and remand for a new trial on Indictment No. 15089.

Rule 8 and Rule 13 are, in substantial part, recodifications of a statute which formerly appeared as Revised Statutes § 1024. In McElroy v. United States, 164 U.S. 76, 17 S.Ct. 31, 41 L.Ed. 355 (1896), the Supreme Court held that § 1024’s provisions were mandatory, not permissive, and that a misjoinder was ground for reversal. The Notes of the Advisory Committee on Rules with respect to Rules 8 and 13 indicate that they are substantially restatements of existing law. Thus the construction of § 1024 of the Revised Statutes announced in McElroy v. United States, supra, still applies. See Schaffer v. United States, 362 U.S. 511, 521, 80 S.Ct. .945, 4 L.Ed.2d 921 (1959) (Douglas, J., dissenting). Rule 14 dealing with relief from prejudicial joinder only comes into play after it has first been determined that joinder was permissible under Rule 8 or Rule 13.

The government urges that even assuming there was an improper Rule 13 joinder of the two indictments we should affirm because the error was harmless within the meaning of Rule 52(a) of the Fed.R.Crim.P. There is a disagreement among the circuits as to whether a join-der not permitted by Rule 8 from the very outset can be' treated as harmless error. The First, Fourth, Fifth, Seventh, Eighth, Ninth, and District of Columbia Circuits have held, even if read narrowly, that such a mis-joinder in violation of Rule 8 cannot be so treated. The Second Circuit has held that it may be. More recently the District of Columbia and the Ninth Circuits may have retreated somewhat from their former holdings. This court has not considered the question.

Rule 52(a), Fed.R.Crim.P. has had a complex evolution. Its earliest explicit statutory predecessor, with respect to post-indictment defects, appears to have been § 269 of the Judicial Code, Act of Feb. 26, 1919, ch. 48, 40 Stat. 1181. It might be argued that the 1919 amendment to the Judicial Code was intended to limit the effect of the successor to § 1024 of the Revised Statutes, and thereby to limit the effect of the Court’s opinion in McElroy v. United States, su-,pm. But we are dealing with statutory rights expressly conferred. Congress has in Rule 8 and Rule 13 defined the permissible scope of joint trials of offenses and offenders. It has in Rule 14 provided a mechanism for protecting against prejudice even within that permissible scope. It seems a strained interpretation of the harmless error statute that it was intended to dilute statutory protections expressly granted. The view that violations of Rule 8 and Rule 13, cannot be treated as harmless is expressed by Cipes in 8 Moore’s Federal Practice fl8.04 [2] (1965) and by Professor Wright in Wright, Federal Practice and Procedure, Criminal § 144, at 328-29 (1969).

We need not in this case definitively resolve the intention of Congress, however, because in any event the cross-examination of Graci had the. effect of tying him to Markwell and thus to the evidence relating to theft from the Defense Depot entirely unrelated to the November 13, 1969 offense. We cannot say that this extraneous evidence had no effect in the jury’s deliberations, or that the court’s admonition to disregard it certainly was followed by each juror. Thus even if we believed that Rule 52(a) applied, we would still grant a new trial.

Graci urges that we should simply reverse because the trial court erred in refusing to dismiss because of pre-indictment and post-indictment delay. We find this contention to be without merit. Graci also urges that the court erred in allowing witness Joann Wainman to refresh her recollection from a statement made by Agent Shumard and in its charge on entrapment. Since we are remanding for a new trial we note merely that we have found no merit in these contentions.

The judgment of the district court will be reversed and the case remanded for a new trial on Indictment No. 15089.

      . There is a slight, but we think insignificant, difference in the text of Revised Statutes § 1024, quoted in McElroy v. United States, 164 U.S. 76, 17 S.Ct. 31, 41 L.Ed. 355 (1896), from the text of the Act of Feb. 26, 1853, ch. 80, § 1, 10 Stat. 162, from which Revised Statutes § 1024, and ultimately Rules 8 and 13, were derived. See 10 Stat. 162.

      . King v. United States, 355 F.2d 700 (1st Cir. 1966).

      . Ingram v. United States, 272 F.2d 567, 569 (4th Cir. 1959).

      . Tillman v. United States, 406 F.2d 930, 933 n. 5 (5th Cir.), vacated on other grounds as to one defendant, denying cert. as to all others, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969).

      . United States v. Gougis, 374 F.2d 758 (7th Cir. 1967) ; United States v. Spector, 326 F.2d 345, 351 (7th Cir. 1963).

      . Haggard v. United States, 369 F.2d 968, 973 (8th Cir. 1966), cert. denied, 386 U.S. 1023, 87 S.Ct. 1379, 18 L.Ed.2d 461 (1967).

      . Metheany v. United States, 365 F.2d 90, 95-96 (9th Cir. 1966).

      . Cupo v. United States, 123 U.S.App.D.C. 324, 359 F.2d 990, 993 (1966), cert. denied, 385 U.S. 1013, 87 S.Ct. 723, 17 L.Ed.2d 549 (1967).

      . United States v. Granello, 365 F.2d 990, 995 (2d Cir. 1966), cert. denied, 386 U.S. 1019, 87 S.Ct. 1367, 18 L.Ed.2d 458 (1967).

      . Baker v. United States, 131 U.S.App.D.C. 7, 401 F.2d 958 (1968), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970).

      . United States v. Friedman, 445 F.2d 1076, 1083 (9th Cir.), cert. denied, 404 U.S. 958, 92 S.Ct. 326, 30 L.Ed.2d 275 (1971) ; United States v. Roselli, 432 F.2d 879, 901 (9th Cir. 1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971).

      . But see United States v. Grasso, 55 F.R.D. 288, 291 (E.D.Pa.1972).


author: GORDON THOMPSON, Jr., District Judge:

text:
    Daphne Rayne MAHONE, nee Daphne Rayne Winslow, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 72-2326.
    United States Court of Appeals, Ninth Circuit.
    Oct. 4, 1974.

      Frank S. Pestaña (argued), of Kid-well & Pestaña, Los Angeles, Cal., for petitioner.
    Carolyn M. Reynolds, Asst. U. S. Atty., Los Angeles, Cal., for respondent.
   OPINION

Before ELY and WALLACE, Circuit Judges, and THOMPSON, District Judge.

GORDON THOMPSON, Jr., District Judge:

This is a petition for review of the order of the Immigration and Naturalization Service finding that petitioner Daphne R. Mahone was deportable under Section 241(a)(1) of the Immigration and Nationality Act. 8 U.S.C. § 1251(a)(1). Petitioner is alleged to have been excludable at the time of entry pursuant to Section 212(a) (20) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a) (20), in that she was an immigrant not in possession of a valid, unexpired immigrant visa. Jurisdiction is conferred upon this court by virtue of Section 106 of the Immigration and Nationality Act. 8 U.S.C. § 1105a. That section allows this court to review all final orders of deportation.

FACTS

Petitioner Mahone is a Canadian native who has spent a great deal of her life in the United States. At one point in her immigration proceedings she claimed to be an American citizen, however, all efforts by the petitioner to prove her place of birth were unsuccessful and no documentary evidence has been submitted by petitioner to sustain her claim to United States citizenship.

Petitioner contends that she does not remember the circumstances surrounding her last entry into the country, that date being on or about October 31, 1960. Petitioner claims at that time, she was under the belief that she was a citizen of the United States and that she would have so indicated, had she been asked. She stated, however, that she did not remember whether she was asked or whether she made any representations. Consequently Mrs. Mahone was found to be a deportable alien under 8 U.S.C. § 1251(a)(1), an alien who was excludable by law at the time of entry.

The Immigration Law

Petitioner now bases her argument against deportation upon a section of the Immigration Act which offers relief to persons who entered fraudulently but develop a familial relationship with citizens or permanent resident aliens. That section, 8 U.S.C. § 1251(f), provides:

The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent or child of a United States citizen or of an alien lawfully admitted for permanent residence.

The Board of Immigration Appeals rejected petitioner’s claim for relief contending that fraud was not an essential prerequisite of the charge for which she is being deported. The Board further stated that the petitioner had not submitted any evidence of any affirmative misrepresentations made by her at the time of entry into the United States.

The central issue, therefore, is whether an alien who enters without inspection or without documents and makes no representations either verbally or in writing is eligible for relief under § 1251(f). We believe the answer to be clearly no. As stated by this court in Monarrez-Monarrez v. Immigration & Naturalization Service, 472 F.2d 119 (9th Cir. 1972):

Relief under § 241(f) has been extended only to those aliens, otherwise qualified, who have committed fraud in obtaining entry papers (e. g., Immigration and Naturalization Service v. Errico, 385 U.S. 214, 87 S.Ct. 473, 17 L.Ed.2d 318 (1966); Muslemi v. Immigration & Naturalization Service, 408 F.2d 1196 (9th Cir. 1969) ; Godoy v. Rosenberg, 415 F.2d 1266 (9th Cir. 1969) or who made misrepresentations when interrogated at a port of entry (Lee Fook Chuey v. Immigration and Naturalization Service, 439 F.2d 244 (9th Cir. 1971)) and whose fraud or misrepresentations directly resulted in the deportation charge against them (Errico, Muslemi, Godoy, and Lee Fook Chuey, supra).
Section 241(f) cannot be expanded to include petitioners. Fraud and misrepresentation cannot be equated to surreptitious entry without bending the language of sections 241(a)(2) and 241(f) into shapelessness and without ignoring the history of § 241(f) recited in Errico. If petitioners’ reading of § 241(f) were adopted, no alien who illegally entered the country and who was not otherwise inadmissible could be deported by reason of his illegal entry after he acquired the requisite family ties. Congress had no such alien bonanza ' in mind. Monarrez-Monarrez v. Immigration & Naturalization Service, supra, at 120.

Petitioner Mahone entered without inspection, examination or interrogation of any kind according to her own testimony. While her entry was not a completely surreptitious entry as in Monarrez-Monarrez, supra, or Gambino v. Immigration and Naturalization Service, 419 F.2d 1355 (2d Cir. 1970) cert. denied, 399 U.S. 905, 90 S.Ct. 2195, 26 L.Ed.2d 559 (1970), it was nonetheless a complete bypass of the normal immigration requirements. This court has consistently held that the fraud must be one of actual misrepresentations to someone rather than avoidance of detection to come within the parameters of 8 U.S.C. § 1251(f).

The law, a product of human endeav- or; is inevitably subject to some arbitrariness; yet to allow petitioner in this case to bypass deportation would do a greater injustice to the immigration laws this country has deemed necessary to establish.

The decision of the Board is affirmed.

       The Honorable Gordon Thompson, Jr., United States District Judge, Southern District of California, sitting by designation.


author: LEWIS, Chief Judge.

text:
    Joe Louis PLUNKETT, Plaintiff-Appellant, v. ROADWAY EXPRESS, INC., a corporation, Defendant-Appellee.
    No. 74-1048.
    United States Court of Appeals, Tenth Circuit.
    Oct. 3, 1974.
    James A. Ikard, Oklahoma City, Okl., on the brief for plaintiff-appellant.
    Peter B. Bradford, McAfee, Taft, Mark, Bond, Rucks & Woodruff, Oklahoma City, Okl., on the brief for defendant-appellee.
    William A. Carey, Joseph T. Eddins, Jr., Beatrice Rosenberg, Charles L. Reis-chel, Elsa Dik Glass, Washington, D. C., on the brief for United States Equal Employment Opportunity Commission as amicus curiae.
    Before LEWIS, Chief Judge, and SETH and McWILLIAMS, Circuit Judges.
   LEWIS, Chief Judge.

Joe Louis Plunkett appeals from an order of the United States District Court for the Western District of Oklahoma dismissing his action against Roadway Express, Inc., brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plunkett initially filed charges of employment discrimination against Roadway with the Equal Employment Opportunity Commission in 1972. At Plunkett’s request and in accordance with Commission regulations, 29 C.F.R. § 1601.25, the Commission on July 31, 1973, mailed him notice of his right to sue Roadway in federal district court. Plunkett received the notice by certified mail on August 3, 1973. He instituted this action on October 31, 1973, 92 days after the Commission sent notice and 89 days after he received it. The district court dismissed on the ground that the 90-day period in which a party must file suit under section 706(f) of Title VII, 42 U. S.C. § 2000e-5(f) (1), runs from the date on which the Commission mails notice of the right to sue and that Plunkett’s action was not therefore timely filed. We reverse.

Section 706(f)(1), as amended in 1972, provides:

If the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge .... (Emphasis added).

Prior to the 1972 amendments of Title VII, section 706 provided:

If the Commission has been unable to obtain voluntary compliance with this title, the Commission shall so notify the person aggrieved and a civil action may, within thirty days thereafter, be brought against the respondent named in the charge .... 78 Stat. 259 (1964) (Emphasis added).

The Supreme Court twice construed the unamended statute to require the thirty-day period to begin to run from the date on which the Commission’s notice is received. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668. See also Archuleta v. Duffy’s Inc., 10 Cir., 471 F.2d 33. The court below held that the 1972 amendment, besides lengthening to 90 days the period within which aggrieved persons may sue, also changed the date on which the period begins to the date of the Commission’s mailing of notice.

The language of the 1972 amendment, however, in no way suggests or compels the conclusion that Congress intended to alter the time of commencement of the complaint-filing period as the Court construed it in Alexander and McDonnell Douglas. The language of the present statute to the effect that the period begins “after the giving of . notice” does not clearly evidence Congress’ intent to alter the effect of the superseded language of section 706; in this respect, notification and the giving of notice appear to be synonymous terms. The sole pertinent reference in the legislative history of the 1972 amendments confirms our conclusion. Moreover, we believe that measurement of the period from the date of the aggrieved person’s receipt of notice serves the policy underlying the notice requirement better than measurement of the period from the Commission’s mailing of notice.

[T]he purpose of statutory notification, which is “to provide a formal notification to the claimant that his administrative remedies with the Commission have been exhausted” . and to inform him that the . period has begun to run, has not been accomplished unless the claimant is actually aware of the suit letter. Franks v. Bowman Transportation Co., 5 Cir., 495 F.2d 398, 404, quoting Beverly v. Loan Star Lead Construction Corp., 5 Cir., 437 F.2d 1136.

Plunkett was unaware of the Commission’s suit letter until he received it; he cannot be said to have impermissibly slept on his rights so long as he filed, as he did, within 90 days of his receipt of the letter. See Franks v. Bowman Transportation Co., supra, 495 F.2d at 404. A contrary result would unnecessarily penalize private litigants for mistakes in delivery and other delays in the mail. We therefore hold that the period for filing private suits under'section 706 of Title VII runs from the aggrieved person’s receipt of the Commission’s letter of notice.

Reversed and remanded.

      . The district court dismissed on the additional ground that Plunkett’s action was barred by the Commission’s failure to find reasonable cause to believe that a violation of Title VII occurred. In this appeal Roadway concedes that the Commission’s finding of reasonable cause is not a jurisdictional prerequisite to suit brought under Title VII. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668.

      . The only ■ reference to the date of commencement of the period for filing complaints appears in the section-by-section analysis accompanying the conference report on II.R. 1746: “[T]he person aggrieved may bring an action in an appropriate district court within 90 days after receiving notification.” (Emphasis added.) Senate Committee on Labor & Public Welfare, Legislative History of the Equal Employment Opportunity Act of 1972 (II.R. 1746, P.L. 92-261), 92d Cong., 2d Sess., at 1847 (1972). The same analysis noted: “In any area where the new law does not address itself, or in any area where a specific contrary intention is not indicated, it was assumed that the present case law as developed by the courts would continue to govern the applicability and construction of Title VII.” Id. at 1844.


author: FEINBERG, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Camillo RIZZUTO, Defendant-Appellant.
    No. 100, Docket 74-1724.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 25, 1974.
    Decided Oct. 9, 1974.
    Irving Anolik, New York City, for defendant-appellant.
    Robert Gold, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., Barbara Ann Rowan and S. Andrew Schaf-fer, Asst. U. S. Attys. on the brief), for appellee.
    Before LUMBARD, FEINBERG and OAKES, Circuit Judges.
   FEINBERG, Circuit Judge:

Defendant Camillo Rizzuto appeals from a judgment of the United States District Court for the Southern District of New York, after a non-jury trial before Charles L. Brieant, Jr., J., convicting him of conspiring to violate the narcotics laws and of the substantive offense of possessing 13 kilos of heroin with intent to distribute. *. The judge sentenced defendant on each count to concurrent prison terms of four years to be followed by special parole of three years. On appeal, Rizzuto argues only that there was insufficient evidence to link him to the narcotics conspiracy and that since his conviction on the substantive count depended upon application of the doctrine of Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), the conviction on both counts must'be set aside.

The evidence of a conspiracy, replete with furtive, abortive meetings and cryptic telephone conversations leading to the actual transfer of heroin for cash, was overwhelming. As to whether Riz-zuto was part of the conspiracy, the record discloses the following. In April 1972, a special agent of the United States Drug Enforcement Administration intercepted a suitcase containing 26 bags of white powder at Kennedy Airport. The agent had been alerted to its arrival from Paris by a French informant. After it was determined that the white powder was heroin, the suitcase was turned over to M. Chaminadas, a French undercover agent working with the Americans. Several days passed while Chaminadas tried to arrange a sale of the heroin through Canadian traffickers he knew. Finally, it was agreed that the transfer would take place at a New York City hotel on May 9, 1972.

Just before noon of that day Rizzuto registered at the hotel under a false name. He was given Room 1005 on the tenth floor. Chaminadas was registered in a room on the floor above. Rizzuto’s co-defendant, Anthony Castiglione, who had already met Chaminadas the night before when he examined the heroin, was registered in Room 1525. At about noon, Castiglione asked Chamina-das to come to his room to receive a call from Canada. Chaminadas did so, spoke to one of the Canadian contacts, and was assured that the money would soon be available. Later that afternoon, Rizzuto went to Castiglione’s room and stayed briefly. Chaminadas then returned to Castiglione’s room, and an hour later Rizzuto was again seen entering that room. At about 4:00 p. m., Castiglione told Chaminadas that the money was due to arrive from Brooklyn at about 9:30 that evening.

■ Shortly before 9:10 p. m., Castiglione was observed leaving the area of Rizzu-to’s room on the tenth floor carrying a small black attache case later found to contain $122,000. Castiglione went to Chaminadas’s room on the eleventh floor and traded the money for the heroin. Castiglione then went back to the floor below and was walking towards Rizzu-to’s room when, apparently sensing that he was being followed, he became nervous. Castiglione was arrested before he reached Rizzuto’s room. An agent then continued to the room, knocked,- and when Rizzuto answered, arrested him.

Rizzuto denied any connection with the conspiracy. His explanation at trial for his presence at the hotel under an assumed name was that he was to meet some “girls” procured by his friend Cas-tiglione. Rizzuto, an unemployed, married father of two from Brooklyn, had paid $25.61 for a room and had waited for over nine hours for the girls when he was arrested. He testified that he did not know how much the girls were to be paid or who was to pay them. The trial judge characterized Rizzuto’s story as “incredible.”

The evidence linking Rizzuto to the scheme was circumstantial but compelling none the less. Cases like United States v. Vilhotti, 452 F.2d 1186 (2d Cir. 1971), cert. denied, 405 U.S. 1041, 92 S.Ct. 1314, 31 L.Ed.2d 582 (1972), and United States v. Cirillo, 499 F.2d 872, 884-887 (2d Cir. 1974), where we reversed convictions based on presence alone, are distinguishable. In Vilhotti, the only evidence linking two defendants to the crime was their presence at a garage where stolen goods were stored. In the same case, however, we affirmed the conviction of another defendant where the evidence showed not only presence but also prior activity ■ that indicated criminal knowledge. Here, Rizzuto’s visits to Castiglione’s room at crucial times, Castiglione's departure from the area of Rizzuto’s room with $122,000 in an attache case and later return with the heroin while Rizzuto waited in the room, and the unbelievable tale told by Rizzuto all justified a finding that Riz-zuto was a knowing participant in the conspiracy. Cirillo is similarly inapplicable. There we reversed two narcotics conspiracy convictions where the only independent evidence available consisted of presence at meetings with other defendants. Unlike the situation here, there was no evidence of what was discussed at the meetings, nor were they conducted in unusual places or under obviously suspicious circumstances.

In short, there was sufficient evidence to support the trial judge’s findings that Rizzuto

knew that a narcotics transaction was being conducted in the [hotel] on May 9th, and that by his presence at the scene of the crime, and by his actions, Rizzuto lent his support to the object of the conspiracy and established his stake in the outcome.

The judgment of conviction is affirmed.

      . The judge’s detailed findings of fact and conclusions of law are incorporated in a 27-page opinion.

      . Before trial, Castiglione was released on $100,000 bail. He never appeared and has been indicted for the bail violation. Another defendant named in the indictment is dead, having perished, according to Judge Brieant, “of an acute plumbiferous condition incurred while engaged in unrelated narcotics activities” prior to trial.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert H. KEMP, Defendant-Appellant.
    No. 74-1103.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 14, 1973.
    Decided Oct. 16, 1974.

      William E. Scent, Keith, Scent, Kirk-man & Walton, Hopkinsville, Ky., Bert T. Combs, Charles R. Simons, Tarrant, Combs, Blackwell & Bullitt, Louisville, Ky., for defendant-appellant.
    George J. Long, U. S. Atty., James H. Barr, Louisville, Ky., for plaintiff-appel-lee.
    Before PHILLIPS, Chief Circuit Judge, LIVELY, Circuit Judge, and GRAY, District Judge.

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

   PER CURIAM.

The appellant was convicted of violations of 18 U.S.C. § 1001. Specifically, he was charged with committing this offense by falsely identifying and selling tobacco on marketing cards issued to other persons for designated farms, knowing that the tobacco was not produced on the farm shown on the card. The indictment contained twelve counts, each alleging a separate, but identical, violation of this statute.

Defendant’s motion for judgment of acquittal was granted as to counts six through eleven of the indictment, no evidence having been offered by the Government in support of these count's of the indictment. On the remaining counts, the motion for judgment of acquittal was denied, and the jury returned a. verdict of guilty on each of these counts, being counts one through five and count twelve. Appellant alleges four errors which he asserts were committed by the Trial Court, and these are the four issues posed for this Court’s consideration.

Two of the issues on appeal, those concerning the Trial Court’s exclusion of certain evidence proffered by the defendant and the Trial Judge’s charge to the jury, are easily and briefly resolved. First, we find that the evidence in question was merely cumulative and that its exclusion by the Court was not an abuse of discretion. Second, we hold that the defendant’s contention that the jury charge did not adequately relate the facts of the case to the offense charged is without foundation in the record and that the charge, read as a whole, was legally sufficient. See: United States v. Bryant, 461 F.2d 912 (6th Cir. 1972).

Both the third and fourth issues relate to count twelve of the indictment. The principal Government witness with respect to count twelve was a Mr. Windsor, on whose card the sale embraced by that count was made. However, Mr. Windsor’s testimony was at variance with the Government’s expectations and with statements made previously to Government agents and attorneys. The Government responded to this development by seeking to impeach Windsor’s testimony with a statement he had given Government agents. The Trial Court allowed the statement to be read, but did not caution the jury as to the limited purpose for which that statement could be used. When Windsor attempted to explain the statement, the Trial Court told him, in the jury’s presence, that he did not believe him.

The defendant contends that the Trial Court committed reversible error by failing to give a cautionary instruction concerning Windsor’s statement. We agree and conclude that the conviction under count twelve must be reversed. United States v. Lester, 491 F.2d 680 (6th Cir. 1974). The defendant’s fourth issue presents yet another reason for reversal of count twelve, that being the Trial Judge’s comment in the jury’s presence that he did not believe Windsor. We, of course, find the Court’s comment to be highly improper and hold that such conduct can never be condoned.

Having concluded that the defendant’s conviction under count twelve cannot stand, the Court is nevertheless of the opinion from the record that any impact the reversible errors found supra, had on the remaining five counts was, at most, harmless, and because concurrent sentences were imposed on all six counts, a reversal of the convictions under counts one through five is not required. United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 110 (1965). Accordingly, we reverse the conviction under count twelve and affirm the conviction as to counts one through five.


author: PER CURIAM:

text:
    Charles J. LANTZ, Petitioner-Appellant, v. Robert C. SEAMANS, Jr., Secretary of the Air Force, Respondent-Appellee.
    No. 21, Docket 74-1364.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 9, 1974.
    Decided Oct. 8, 1974.
    Frederick H. Cohn, New York City, for petitioner-appellant.
    Thomas A. Illmensee, Asst. U. S. Atty., Brooklyn, N. Y. (David G. Tra-ger, U. S. Atty., and Raymond J. Dearie, Asst. U. S. Atty., Brooklyn, N. Y., on the brief), for respondent-appellee.

      Before SMITH, TIMBERS and GURFEIN, Circuit Judges.

       At the time of oral argument, Judge Gur-fein was a District Judge of the United States District Court for the Southern District of New York, sitting by designation.

   PER CURIAM:

Charles J. Lantz, an unattached, inactive United States Air Force reservist, appeals from an order entered January 30, 1974 in the Eastern District of New York, Mark A. Costantino, District Judge, dismissing for lack of jurisdiction a petition for a writ of habeas corpus by which Lantz challenged the denial by the Secretary of the Air Force of his application for a discharge based on his claim of conscientious objector status.

The narrow issue presented is the correctness of the district court’s determination that it lacked subject matter and in personam jurisdiction because petitioner’s “custodian”, i. e. his nominal commanding officer or other officer in his chain of command, was not located within the district court’s jurisdiction, and petitioner’s only contact within the court’s jurisdiction was his domicile.

We reverse essentially upon the authority of our own decision in Arlen v. Laird, 451 F.2d 684 (2 Cir. 1971), which later was approved by the Supreme Court in Strait v. Laird, 406 U.S. 341, 344-45 (1972). See also Eisel v. Secretary of the Army, 477 F.2d 1251 (D.C.Cir. 1973), and United States ex rel. Applebaum v. Seamans, 365 F.Supp. 1177 (S.D.N.Y.1973), both of which we approve.

In the instant case, while Maryland is the place where petitioner’s conscientious objector application was filed and processed and Colorado is the place where his records are kept, we hold upon the authorities cited above that New York is the proper forum for this ha-beas corpus proceeding and that the jurisdictional underpinning is provided by the facts that petitioner is domiciled in New York; he is a member of the New York bar; and.the Air Force implicitly recognized New York as the place of “custody” in notifying him there of the denial of his application for discharge.

Reversed and remanded for a hearing on the merits.


text:
    John P. GAWLER and Annabel C. Gawler, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. Robert H. MYERS and Antoinette H. Myers, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. Katherine L. SIMMONS, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. John H. MYERS and Eleanor B. Myers, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. Berkeley L. SIMMONS, Jr., and Virginia T. Simmons, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. Robert L. SIMMONS, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    Nos. 74-1185 to 74-1190.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 2, 1974.
    Decided Oct. 18, 1974.
    Bruce R. Hopkins, Washington, D. C. (Williams, Myers & Quiggle, Washington, D. C., on brief) for. appellants.
    Alfred S. Lombardi, Atty., Tax Div., U. S. Dept, of Justice (Scott P. Cramp-ton, Asst. Atty. Gen., Meyer Roth-wacks and Jonathan S. Cohen, Attys., Tax Div., U. S. Dept, of Justice, on brief), for appellee.
    Before BOREMAN, Senior Circuit Judge and WINTER and CRAVEN, Circuit Judges.
   PER CURIAM:

Judge Winter and Judge Craven agree that the judgment of the tax court should be affirmed for the reasons set forth in the opinion of Judge Tannen-wald, writing for the majority in Gawler v. Commissioner, 60 T.C. 647 (1973); while Judge Boreman would reverse for the reasons set forth by Judge Drennen, dissenting in that case.

Affirmed.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HECKETHORN MFG. CO., Respondent.
    No. 74-1316.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 10, 1974.
    Decided Oct. 22, 1974.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and LIVELY, Circuit Judges.
   ORDER

This case is before the court on application for enforcement of an order of the Board and cross-petition to review and set aside the order which is reported at 203 NLRB No. 46. The Board found that the Company had violated Section 8(a)(1) of the Act by coercively interrogating employees about their own and other employees’ union activities and by threatening job loss if employees chose union representation.

Upon consideration of the record as a whole, we are of the opinion that substantial evidence supports the finding as to violation of Section 8(a)(1), though we find no coercive interrogation in the conversations between foreman Simpson and employee Clark or supervisor Whittle and employee Rigsby which were relied upon in part by the Administrative Law Judge and the Board.

It is therefore ordered that enforcement of the Board’s order is granted.


text:
    Nelson James LEWIS, Appellee, v. James F. HOWARD, Director, and K. R. Purvis, Supt., Southampton Farm, Appellants.
    No. 74-1568.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 4, 1974.
    Decided Nov. 4, 1974.
    Robert E. Shepherd, Jr., Asst. Atty. Gen., Virginia (Andrew P. Miller, Atty. Gen., Virginia, on brief), for appellants.
    L. B. Chandler, Jr., Charlottesville, Va. (Chandler & Huff, Charlottesville, Va., on brief), for appellee.
    Before BOREMAN, Senior Circuit Judge, and WINTER and WIDENER, Circuit Judges.
   PER CURIAM:

Nelson James Lewis, then seventeen years old, was tried and convicted as an adult in the Corporation Court of the City of Charlottesville, Virginia, after he had been committed to the Department of Welfare and Institutions by the Juvenile and Domestic Relations Court of the City of Charlottesville. Lewis filed his petition in the district court for a writ of habeas corpus and the court granted the writ, holding that the trial and conviction of Lewis as an adult in the Corporation Court was in violation of the Fifth Amendment prohibition against double jeopardy.

Upon consideration of the record, briefs and arguments of counsel we affirm on the opinion of the district court.

Affirmed.

      . Lewis v. Howard, 374 F.Supp. 446 (D.C.W.D.Va.1974).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ignacio MANJARRES-ARCE, Defendant-Appellant.
    No. 74-1589.
    United States Court of Appeals, Ninth Circuit.
    Aug. 23, 1974.
    Certiorari Denied Jan. 13, 1975.
    See 95 S.Ct. 788.
    Frank M. Mangan (argued), Federal Defenders, Inc., San Diego, Cal., for defendant-appellant.
    William A. Bower, Asst. U. S. Atty., (argued), San Diego, Cal., for plaintiff-appellee.

      Before CHAMBERS and GOODWIN, Circuit Judges, and COPPLE, District Judge.

       The Honorable William P. Copple, United States District Judge for the District of Arizona, sitting by designation.

   ORDER AFFIRMING

The judgment appealed from is affirmed for the reasons stated by District Judge Enright in his opinion denying the motion for reduction of the sentence imposed by the magistrate. 382 F.Supp. 1046 (D.C.So.D.Cal.1974).


text:
    UNITED STATES of America, Appellant, v. The GARRETT CORPORATION, Appellee.
    No. 74r-1488.
    United States Court of Appeals, Sixth Circuit.
    Argued April 3, 1974.
    Decided Oct. 16, 1974.
    William M. Milligan, Gary Brinsfield, U. S. Attys., Dayton, Ohio, Lt. Col. John J. Stirk, Washington, D. C., George S. Hecker, St. Louis, Mo., for McDonnell Douglas, Charles A. Weiss, Francis Gaff-ney.
    Paul Horstman, Edward B. Mitchell, Dayton, Ohio, Herbert L. Fenster, James J. Gallagher, Thomas L. Patten, Washington, D. C., for appellee.
    Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.
   ORDER

The joint motion of the parties for remand of this case to the United States District Court for entry of a protective order is granted.

The protective order to be entered by the district court shall contain the following language:

The documents ordered to be produced shall not be disclosed for any purpose except as may be necessary in the normal course of litigation (including discovery and preliminary proceedings and trial on the merits) in the case of The Garrett Corporation v. McDonnell Douglas Corporation, CV 74466F in the United States District Court for the Central District of California. Documents which are classified shall be handled and safeguarded in accordance with current Department of Defense regulations regarding the use and handling of classified documents.

Wherefore it is ordered that this case be and it hereby is remanded to the United States District Court for the Southern District of Ohio, Western Division, for entry of the protective order recited herein.


author: BY THE COURT:

text:
    Robert Alan JONES, Individually, etc., Plaintiff-Appellant, v. Henry WADE, Individually, etc., and Frank Dyson, Individually, etc., Defendants-Appellees.
    No. 72-1481.
    United States Court of Appeals, Fifth Circuit.
    Nov. 18, 1974.
    Bill Barbisch, Austin, Tex., for plaintiff-appellant.

      N. Alex Bickley, Joseph G. Werner, Dallas, Tex., for Dyson.
    Henry Wade, Dist. Atty., Dallas, Tex., for Wade.
    John L. Hill, Atty. Gen. of Tex., Jay Floyd, Gilbert J. Pena, Asst. Attys. Gen., Thomas M. Pollan, Austin, Tex., for State of Texas.
    Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRA-HAM and RONEY, Circuit Judges.
   BY THE COURT:

In light of Steffel v. Thompson, 1974, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505, the en banc Court orders itself dissolved. The case is remanded to the panel for further proceedings.


text:
    Robert Alan JONES, Individually, etc., Plaintiff-Appellant, v. Henry WADE, Individually, etc., and Frank Dyson, Individually, etc., Defendants-Appellees.
    No. 72-1481.
    United States Court of Appeals, Fifth Circuit.
    Nov. 18, 1974.
    Appeal from the United States District Court for the Northern District of Texas; Joe Ewing Estes, Judge.
    Before TUTTLE, WISDOM and SIMPSON, Circuit Judges.
   PER CURIAM:

By order dated Nov. 18, 1974, 504 F.2d 427, this Court vacated its earlier order putting this appeal en banc and, in light of Steffel v. Thompson, remanded the appeal to the panel which had reversed the judgment of the district court. Steffel v. Thompson, reversing and remanding Becker v. Thompson, held that the principles set forth in Younger v. Harris and Samuels v. Mackell are inapplicable when no state prosecution is pending against a complainant seeking federal declaratory or injunctive relief against a threatened prosecution under an allegedly unconstitutional state statute. The Supreme Court held that the complainant need not show prosecutorial harassment or bad faith enforcement by the state and that federal jurisdiction in a declaratory judgment suit did not require that the statute be challenged on its face rather than as applied.

■ We reaffirm our judgment reversing and remanding the ease to the district court, further proceedings to be consistent with our earlier opinion as modified by the effect of the Supreme Court’s holding in Steffel v. Thompson.

      . Steffel v. Thompson, 1974, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505.

      . Jones v. Wade, 5 Cir. 1973, 479 F.2d 1176.

      . Becker v. Thompson, 5 Cir. 1972, 459 F.2d 919, reh. en banc denied, 1972, 463 F.2d 1338.

      . Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669.

      . Samuels v. Mackell, 1971, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688.


text:
    UNITED STATES of America, and John C. Cronin, Special Agent, Internal Revenue Service, Plaintiffs-Appellees, v. J. Louie CARTER, Defendant-Appellant.
    No. 73-1414.
    United States Court of Appeals, Fifth Circuit.
    Nov. 20, 1974.

      J. Luther Drew, West Palm Beach, Fla., for defendant-appellant.
    Scott P. Cramp ton, Charles E. Anderson, Asst. Attys. Gen., Tax Div., Dept, of Justice, Lee H. Henkel, Jr., Acting Chief Counsel, IRS, Washington, D. C., Mervyn L. Ames, Asst. U. S. Atty., Miami, Fla., for plaintiffs-appellees.
   ON PETITION FOR REHEARING

Before BROWN, Chief Judge, and RONEY and GEE, Circuit Judges.

PER CURIAM:

In his petition for rehearing appellant claims that this decision, 489 F.2d 413 (5th Cir. 1973), is in direct conflict with United States v. Humble Oil & Refining Co., 488 F.2d 953 (5th Cir. 1974). In this case we enforced an open-ended “John Doe” summons, while in Humble Oil we held that the Internal Revenue Service is not empowered under sections 7601 and 7602 to issue such a summons in aid of its research projects or inquiries, absent an investigation of taxpayers or individuals and corporations from whom information is sought. We do not regard these cases as being in conflict. In each case, the hearing panel was well aware of the other case pending.

In Carter, the Internal Revenue Service sought the names, addresses, and social security numbers of Carter’s clients in order to ascertain the correctness of their tax returns for the purpose of checking the expertise of the taxpayer, Carter. The project was referred to as the Tax Preparers Project and was an attempt to check for fraudulent tax preparers. It was aimed at consumer protection rather than taxpayer fraud. In Humble Oil, however, the Internal Revenue Service was concerned with taxpayer fraud. The investigation in that ease involved an attempt to obtain the names, addresses, social security numbers, and other information about third party taxpayers for the sole purpose of checking their returns for fraud or mistake.

In Humble Oil there was an investigation for purpose of discovering criminal activity. In Carter there was research, not so much to unearth criminal activity on the part of the taxpayer or even the tax preparer, but more to protect the consumer and, incidentally, to ensure that the United States received all of the funds it was entitled to receive.

The language of section 7602 supports the distinction between the two opinions of this Court reaching different results under the different fact situations.

The petition for rehearing is denied.