source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    David L. STONE, and Emory Hyatt, Jr., et al., Plaintiffs-Appellees, v. Charles EGELER, Deputy Warden, State Prison, Jackson, et al., Respondents-Appellants.
    No. 74-1256.
    United States Court of Appeals, Sixth Circuit.
    Nov. 15, 1974.
    Frank J. Kelley, Atty. Gen. of Mich., Robert A. Derengoski, Terrence P. Grady, Keith D. Roberts, Asst. Atty. Gen., James R. Stegman, Lansing, Mich., for respondents-appellants.
    William Easton, Upper Peninsula Legal Services Inc., Marquette, Mich., for plaintiffs-appellees.
    Before EDWARDS, McCREE and LIVELY, Circuit Judges.
   PER CURIAM.

This is an appeal from injunctive relief granted against officers of the correction system of the State of Michigan as a result of a suit brought by two prisoners under 42 U.S.C. § 1983 (1970). The prisoners had been suspected of being involved in illicit drug traffic at Jackson penitentiary in Michigan and as a result were transferred to Michigan’s maximum security prison at Marquette. No hearing was held on the charges nor were they resolved by the Department of Corrections. Judge Fox, after a full hearing, held that the transfers were disciplinary in nature and occasioned “serious and substantial deprivations” and that failure to grant a hearing represented a violation of federal due process. He entered an order enjoining such transfers absent a minimal due process hearing. He relied on Gomes v. Travisono, 353 F.Supp. 457 (D.R.I.1973), which case was subsequently affirmed in part and reversed in part by the First Circuit, 490 F.2d 1209 (1st Cir. 1973).

Gomes v. Travisono has now been reversed and remanded by the United States Supreme Court for reconsideration in the light of Wolff v. McDonnell, 418 U.S, 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). See Travisono v. Gomes, 418 U.S. 909, 94 S.Ct. 3200, 41 L.Ed.2d 1155 (1974).

Since Wolff is now the definitive standard for prison disciplinary cases, there is a temptation simply to reverse and remand this case for reconsideration in the light of Wolff. Our reading of Judge Fox's opinion, however, convinces us that his finding that these transfers were disciplinary and resulted in substantial deprivations was correct and that the minimal hearing standards he required were wholly in accord with those of Wolff.

Although the issue was not presented below, we have examined the question of whether or not the District Court and this court had and has jurisdiction. See Sands v. Wainwright, 491 F.2d 417 (5th Cir. 1973). As to this issue we can find no indication in this case of any attack upon a statute of the State of Michigan or upon any regulation adopted by the Department of Correction. We believe the District Court had jurisdiction and that this court has also. See Ault v. Holmes, 506 F.2d 288 (6th Cir. 1974).

We are, however, puzzled by the peremptory order contained in the last sentence of Judge Fox’s Opinion and Order that petitioner “be immediately released and discharged from further custody.” No such relief appears to have been sought in the complaint which made no attack at all upon the sentences, nor does the District Judge state any reason for the action. It may, of course, be that the District Judge was acting in awareness that appellees had completed service of their sentences as required by law, but if so, we cannot presume that the Department of Correction would fail to discharge them.

The order stated or implied in the last sentence of the District Court’s Opinion and Order of December 18, 1973, is vacated and the judgment of the District Court is affirmed as modified.


author: EDWARDS, Circuit Judge.

text:
    Donald E. AULT, Individually, and on behalf of all others similarly situated, Plaintiff-Appellee, v. Charles J. HOLMES, Individually and in his official capacity as Commissioner of the Department of Corrections of the Commonwealth of Kentucky, et al., Defendants-Appellants. John Brenton PRESTON, Plaintiff-Appellee, v. Henry E. COWAN, Warden Kentucky State Penitentiary, et al., Defendants-Appellants.
    Nos. 73-2049 and 73-2208.
    United States Court of Appeals, Sixth Circuit.
    Nov. 15, 1974.

      Ed W. Hancock, Atty. Gen. of Kentucky, Kenneth A. Howe, Jr., Bruce K. Davis, Legal Counsel, Bureau of Corrections, Dept, of Justice, Frankfort, Ky., for defendants-appellants in No. 73-2049.
    Robert Plotkin, N.L.A.D.A., Washington, D.C., Robert E. Delahanty, Elizabeth M. Freedman, Louisville, Ky., Allen M. Ressler, Legal Aid and Defender Society, Kansas City, Mo., for plaintiff-appellee in No. 73-2049.
    Ed W. Hancock, Atty. Gen. of Kentucky, Robert L. Chenoweth, Bruce K. Davis, Frankfort, Ky., for defendants-appellants in No. 73-2208.
    Robert A. Sedler, Lexington, Ky., for plaintiff-appellee in No. 73-2208.
    Jack Greenberg, Stanley A. Bass, New York City, for amici curiae.
    Before EDWARDS, McCREE and LIVELY, Circuit Judges.
   EDWARDS, Circuit Judge.

These two cases, which were consolidated for hearing, presented the same basic problems, namely, whether or not prisoners in Kentucky’s penal system have a due process right to a hearing before they are transferred out of the state to continue service of their penal term in the penitentiary systems of other states, and if so, what sort of hearing is required.

The cases were heard before Judge Charles Allen in Louisville, who entered thoughtful opinions finding due process violations in defendants’ denial of any hearing (absent an “emergency” situation), and spelling out what defendants had to do at the due process hearing he required.

At appellate hearing counsel for the Department of Corrections agreed that some form of due process hearing was required before such a transfer took place. Defendants’ opposition to Judge Allen’s order centered primarily upon his requirement of “an impartial” board and his holding that the prisoner had a right to be represented by a lay advocate and that he had the right to call and examine witnesses.

Subsequent to appellate hearing of these cases (and, of course, subsequent to Judge Allen’s decision), two developments have taken place which have required our consideration. First, the attention of this court was called to the well-considered opinion of Judge Goldberg for the Fifth Circuit, sitting en banc, concerning somewhat similar eases involving prisoner complaints about disciplinary procedures. See Sands v. Wainwright, 491 F.2d 417 (5th Cir. 1973). In all four of the cases there concerned the Fifth Circuit held it was deprived of jurisdiction by the three-judge court requirement of 28 U.S.C. § 2281 (1970).

Since the Sands case had not been considered by the District Judge in our instant cases, nor briefed or argued before our panel, we required additional briefing concerning the jurisdiction of our court. Both briefs received distinguish the Sands case and our instant cases by pointing out that in our cases plaintiffs-appellees do not attack any state statute or any state regulation adopted by an administrative board or commission as required by 28 U.S.C. § 2281 (1970). The brief for the State of Kentucky states in this regard:

“[PJlaintiffs-appellees have challenged the constitutionality of unwritten procedures used in implementing a statute that is constitutional on its face. The procedures, or lack of them, complained of are not set forth in any formally adopted regulation or order. At most they represent the Kentucky Department of Corrections’ informally established procedural policies with regard to interstate transfer of prisoners. ' The statute involved here, KRS 196.610, does not foreclose the procedural safeguards which the plaintiffs-appellees requested and, in short, no state regulations speak to the subject at all. Plaintiffs-appellees’ success or failure in these actions will have and have had no effect upon the present statutory framework underpinning the operations of the Kentucky Department of Corrections in this area. At the most, these two cases will have the effect of requiring the Kentucky Department of Corrections to spell out the procedures required to comport to constitutional principles. Having in view the principle that Section 2281 is to be closely construed to the end that only those cases which plainly fall in the class therein described be referred to three-judge courts, we respectfully state that informally adopted procedural policies and practices of the kind involved in these two cases at bar concerning interstate transfer of prisoners, although applied statewide, are not embraced within Section 2281, and that however substantial the federal questions in these two cases at bar may be, a district court of three judges, pursuant to 28 U.S.C. § 2281, would not have jurisdiction to consider these claims.” (Emphasis in original.)

On the facts in this case, we conclude that the District Judge had jurisdiction (as opposed to any three-judge court requirement) and that as a consequence, we do. 28 U.S.C. § 2281 (1970) provides:

“An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.” Id.

Clearly in our cases plaintiffs-appellees do not attack “any State statute” or any “order made by an administrative board or commission acting under State statutes.” Indeed, the unwritten and informal administrative policies herein involved do not even appear to be of statewide application, since they appear to affect only two of seven institutions. These facts serve to distinguish our cases from those involved in Sands v. Wainwright, supra.

Strongly influencing our decision in this regard is the description of the three-judge court statute set forth in Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941), wherein the Supreme Court termed this measure “an enactment technical in the strict sense of the term and to be applied as such.” (Emphasis added). See also Ex parte Bransford, 310 U.S. 354, 361, 60 S.Ct. 947, 84 L.Ed. 1249 (1940).

We also note the footnote in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), states: “Since no statewide regulation was involved [in the Wolff case] there was no need to convene a three-judge court. See Board of Regents v. New Left Education Project, 404 U.S. 541, [92 S.Ct. 652, 30 L.Ed.2d 697] (1972).” Wolff v. McDonnell, supra at 542 n. 1, 94 S.Ct. at 2968. Additionally we note that a case of recent date involving very similar facts to those of our instant cases, Gomes v. Travisono, 490 F.2d 1209 (1st Cir. 1974), has now been remanded to the First Circuit “for further consideration in light of Wolff v. McDonnell, 418 U.S. 539 [94 S.Ct. 2963, 41 L.Ed.2d 935] (1974),” Travisono v. Gomes, 418 U.S. 909, 94 S.Ct. 3200, 3201, 41 L.Ed.2d 1155 (1974) — a disposition which clearly assumes that the district and appellate courts had jurisdiction.

The decision of Wolff v. McDonnell is, of course, the second significant development since the District Judge decided our instant cases. In Wolff the majority of the Supreme Court has not only decided that due process required a hearing on serious disciplinary proceedings in prison, but has spelled out the limited nature of such a hearing. It is clear that the District Judge has found that Kentucky was employing interstate transfers for such serious disciplinary matters.

Since the District Judge had no opportunity to phrase his orders pertaining to the nature of the hearing required in accordance with the Wolff standards, we now vacate that portion of his order and remand these cases to that court for reconsideration in the light of Wolff v. McDonnell, supra.

We also require that he amend his order pertaining to the return of prisoners for purposes of court proceedings to limit such mandatory returns to instances wherein a court has entered an order for the prisoner’s return.

In other respects the judgment of the District Court is affirmed.

      . Judge Allen found that due process required a hearing because interstate transfers might adversely affect plaintiffs’ chances for parole, would make visits of family and friends more difficult, and would require complete new adjustment to a different institution.


author: GURFEIN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Solomon GLOVER, Defendant-Appellant.
    No. 118, Docket 74-1739.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 11, 1974.
    Decided Oct. 4, 1974.

      Hudson H. Reid, New York City (William C. Chance, Jr., New York City, of counsel), for defendant-appellant.
    Mel P. Barkan, Asst. U. S. Atty., New York City (Paul J. Curran, U. S. Atty., and S. Andrew Schaffer, Asst. U. S. Atty., S. D. of New York, of counsel), for appellee.
    Before SMITH, TIMBERS and GURFEIN, Circuit Judges.

         At tlie time of the argument, Judge Gurfein was a District Judge of the United States District Court for the Southern District of New York, sitting by designation.

   GURFEIN, Circuit Judge:

This appeal presents the picture of an able trial judge, the Honorable Charles L. Brieant, faced with the unusual dilemma of conflicting constitutional mandates, the Confrontation Clause of the Sixth Amendment as expressed in the Bruton rule and the Double Jeopardy Clause of the Fifth Amendment.

Solomon Glover appeals from a conviction entered on May 8, 1974 in the Southern District of New York after a two-and-a-half-day trial before the Honorable Robert J. Ward and a jury. Glover was found guilty of conspiracy to violate the federal narcotics laws, 21 U.S.C. § 846, under Count 1 of Indictment 73 Cr. 327. He was sentenced to a term of one year imprisonment with a special parole of three years to follow. His principal ground of appeal is that he was “twice put in jeopardy” in violation of the Fifth-Amendment.

The indictment in question charged thirteen persons including Glover with the conspiracy mentioned. Four of these defendants, including Glover, were brought to trial before Judge Brieant and a jury. On July 23, 1973 after four days of trial the court severed the case against Glover and directed a mistrial as to him, in the court’s own words, “without his consent.”

Glover then moved to dismiss the indictment on the ground that a subsequent trial would violate his right not to be put twice in jeopardy. Judge Brieant in a thoughtful opinion denied his motion, and Glover was thereafter tried before Judge Ward and a jury and convicted of the very conspiracy recounted above on the same indictment.

We turn to the events that pose the issue on appeal.

The trial had begun on July 16 before Judge Brieant. Late in the afternoon of Friday, July 20, written reports of three oral statements made by Glover to government agents were shown to Judge Brieant for the first time by the Government though they had previously been shown to Glover’s attorney. Immediately upon viewing the reports of the oral statements of Glover the Court advised counsel for the Government and all defendants that the statements presented a Bruton problem and that he would give counsel “an opportunity to organize your thoughts on it and give me briefly what you have in mind on it.”

Though the attorneys were to brief the matter over the weekend, the trial judge in an effort to avoid wasting the jurors’ time, ordered the trial to proceed on Friday afternoon.

The Government, on its part, though eoncededly not a single bit of evidence had been produced against Glover himself thus far, now introduced a witness who testified directly about Glover. As the Court noted, “this testimony was the first evidence received in the trial bearing upon the guilt of Glover.”

By Monday, July 23, the trial judge had reached a decision that “it looks pretty clear to me that to admit any of this statement would violate the Bruton rule.” Glover’s attorney at this juncture, consonant with his obligation to his client, refused to move for a severanee though he had previously anticipated doing so.

The Court then told the Assistant U.S. Attorney that he had two alternatives open to him. “You may either proceed without using the statement or you may move for a severance and mistrial.” The Government moved for a severance of the defendant Glover. The Court reluctantly granted the severance because it believed that the statements of Glover would be unduly prejudicial to his co-defendants even with redaction.

To the extent that it is relevant to the issue now before us, we believe that Judge Brieant was right in his analysis of the Bruton problem as he later expounded it on the subsequent motion to dismiss the indictment. His conscientious regard for the rights of the co-defendants properly led him to the exclusion of the oral statements by Glover. See e. g. United States v. Wilkins, 367 F.2d 990 (2 Cir. 1966); United States v. Bozza, 365 F.2d 206 (2 Cir. 1966) (anticipating Bruton).

Having come to that pass, the court had the option of permitting the trial to continue against Glover as well without allowing the admissions to be available to the Government against Glover, or to sever and allow the prosecution to tender Glover’s admissions against himself at a second trial against Glover alone. The trial judge chose the second option on the obviously considered view that this would not constitute double jeopardy under the Fifth Amendment. We are constrained to disagree.

The Double Jeopardy Clause of the Fifth Amendment reads as follows: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”

The District Court understood that double jeopardy normally attaches upon the empaneling of a jury competent to try the defendant, for it is then that a defendant is “put in jeopardy.” Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 93 L.Ed. 974 (1949); Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904). Having been “put in jeopardy,” the defendant is thought to have the right to seek a favorable verdict from the jury which he has accepted as satisfactory. See United States v. Jorn, supra, 400 U.S. at 486, 91 S.Ct. 547; Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 10 L. Ed.2d 100 (1963); Wade v. Hunter, supra, 336 U.S. at 689, 69 S.Ct. 834. The negative reason for this solicitude is that to permit the trial to be aborted might lead to mistrials covertly for the benefit of a prosecution that needs strengthening. See e. g. United States v. Kin Ping Cheung, 485 F.2d 689, 691-692 (5 Cir. 1973). A mistrial can operate “as a post-jeopardy continuance to allow the prosecution an opportunity to strengthen its case.” Illinois v. Somerville, supra, 410 U.S. at 469, 93 S.Ct. at 1073 (per Rehnquist, J.), citing Downum v. United States, supra.

While the rule is firm that jeopardy attaches when the jury is sworn there are exceptions. These exceptions do not lend themselves to “meaningful categorization.” See Mr. Justice Rehnquist, speaking for the majority in Illinois v. Somerville, supra, 410 U.S. at 464, 98 S.Ct. 1066. In the words of Justice Story, spoken one hundred and fifty years ago, “it is impossible to define all the circumstances, which would render it proper to interfere.” United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824).

Despite the difficulty, and perhaps the undesirability of precise classification, it is possible nonetheless to find some common ground in the decisions which have held particular exceptions not to be in violation of the Double Jeopardy Clause of the Fifth Amendment.

It was early decided, for example, that a judge could discharge a jury without jeopardy when it could not agree upon a verdict. United States v. Perez, supra. And the reversal of a conviction upon appeal allows the successful appellant to be tried again. United States v. Ball, 163 U.S. 662, 671-672, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); Bryan v. United States, 338 U.S. 552, 560, 70 S.Ct. 317, 94 L.Ed. 335 (1950). Such rules are general and easy to apply.

The more difficult situations arise when the trial is stopped, short of its being given to the jury for a verdict, under circumstances where the consent of the defendant has not been obtained.

It is a hard enough case when there is a single defendant, as we shall see. In the matter before us the difficulty is compounded by the circumstance that we are dealing with a conspiracy trial involving multiple defendants which was aborted before its conclusion as to one alleged conspirator — appellant alone— without his consent. The declaration of a mistrial on such a state of facts has never been considered by the Supreme Court.

Turning first to the case of a single defendant whose trial has been aborted without his consent we have been told that the cases turn on particular facts. We must review these patterns of fact, however, to see whether we can “distill from them a general approach.” See Illinois v. Somerville, supra, 410 U.S. at 464, 93 S.Ct. at 1070.

It is sometimes loosely said that the test is whether there is “manifest necessity” for the mistrial, building upon Justice Story’s dictum in Perez, supra. If “manifest necessity” is not treated as a phrase of art, it may be a useful handle.

Under the rubric of manifest necessity a retrial has been permitted when it had been learned that a juror was acquainted with the defendant, Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891); when a juror became ill, United States v. Potash, 118 F.2d 54 (2 Cir. 1941); when one of the jurors was found to have served on the Grand Jury, Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1894); or when the defendant had not pleaded to the indictment after demurring, Lovato v. New Mexico, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244 (1916).

This doctrine of manifest necessity went so far as to permit retrial of a court-martial which had been aborted because the advance of our Army in World War II made the desired witnesses no longer readily available under battlefield conditions, Wade v. Hunter, supra. Even in that unique battlefield situation, three justices dissented in favor of applying the double jeopardy prohibition.

The most recent of the procedural error cases is Illinois v. Somerville, supra. There the Supreme Court held (5 to 4) that where the defendant was brought to trial on an indictment which it developed before any evidence was presented could not be cured by amendment under Illinois law and wht/re a conviction would, in any event, have been overturned on appeal, a retrial after the declaration of a mistrial over the defendant’s objection did not violate the double jeopardy clause. The decision was essentially based upon “the State’s established rules of criminal procedure,” 410 U.S. at 468, 93 S.Ct. at 1072. No comparable federal rule is involved here.

On the other hand, in Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963) (5 to 4), the Government had failed to have a material witness on hand to testify concerning two counts of the indictment. The trial judge, after the jury was sworn, declared a mistrial over the defendant’s objection. “[TJhere was a jury empaneled, but there was no evidence offered or heard.” See Downum v. United States, 300 F.2d 137, 139 (5 Cir. 1962). The Supreme Court held that double jeopardy had attached when the jury had been empaneled though no prosecutorial misconduct was charged. The discovery by the prosecutor that he had not enough evidence after the jury was empaneled did not prevent double jeopardy from attaching, because the defendant had a right to go to verdict with the jury he had selected.

In Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961), the trial judge had declared a mistrial sua sponte when he felt that the U.S. Attorney was improperly trying to suggest to the jury that the defendant had committed other crimes. It was common ground below, 282 F.2d 43 (2 Cir. 1960) (en banc), that his solicitous interference for the benefit of the defendant was the ground for the declaration of a mistrial. The defendant was retried and convicted. This court affirmed. A majority of the justices affirmed this court “in the particular circumstances,” 367 U.S. at 364, 81 S.Ct. 1523, and sanctioned the retrial. The words of Justice Frankfurter for the Court are instructive:

“ . . . Suffice that we are unwilling, where it clearly appears that a mistrial has been granted in the sole interest of the defendant, to hold that its necessary consequence is to bar all retrial.” 367 U.S. at 369, 81 S.Ct. at 1527.

The natural question to follow is whether a mistrial for the benefit of neither the defendant nor the prosecution will necessarily save a retrial from the double jeopardy prohibition.

We think that the definitive answer was given by Justice Harlan, speaking for a majority of the Court in United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). And we follow that case as the model closest in point in deciding this one.

In Jorn the trial judge declared a mistrial sua sponte after the trial had begun when he learned that several government witnesses who were to testify against the single defendant in a tax fraud case had not been sufficiently advised of their own privilege against self-incrimination. The government sought to retry the defendant but the Court below held that double jeopardy had attached.

The Supreme Court ruled that double jeopardy had, indeed, attached. Mr. Justice Harlan stated:

“The Fifth Amendment’s prohibition against placing a defendant ‘twice in jeopai'dy’ represents a constitutional policy of finality for the defendant’s benefit in federal criminal proceedings.” 400 U.S. at 479, 91 S.Ct. at 554.

While generally eschewing “categories of circumstances,” Justice Harlan quite clearly restricted Gori, supra, “to the fact that the judge was acting ‘in the sole interest of the defendant.’ 367 U.S. at 369, 81 S.Ct. 1523, at 1527.” 400 U.S. at 482, 91 S.Ct. at 556.

In the Jorn case, on the other hand, Justice Harlan observed that the trial judge “was motivated by the desire to protect the witnesses rather than the defendant.” 400 U.S. at 483, 91 S.Ct. at 556.

The policy considerations were expressed by Justice Harlan in these terms:

“ . . . the crucial difference between reprosecution after appeal . and reprosecution after a sua sponte judicial mistrial declaration is that in the first situation the defendant has not been deprived of his option to go to the first jury and, perhaps, [get] an acquittal. On the other hand, where the judge, acting without the defendant’s consent, aborts the proceeding, the defendant has been deprived of his ‘valued right to have his trial completed by a particular tribunal.’ See Wade v. Hunter, 336 U.S. at 689, 69 S.Ct. 834, at 837.
“ . . . in the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.” 400 U.S. at 484, 486, 91 S.Ct. at 558.

The thrust of the opinion is that where the mistrial is not motivated for the benefit of the defendant, and the defendant has done nothing himself to create the problem, he is entitled to his double jeopardy protection. Mr. Justice Stewart, dissenting in Jorn, noted that “[c]onversely the mistrial was not requested by the prosecutor.” 400 U.S. at 490, 91 S.Ct. at 559. This is a true statement that accents the position of the majority that the prime consideration is the action of the trial judge as it affects the defendant.

The Chief Justice concurred in the majority opinion in Jorn on the specific ground that the defendant had done nothing to bring about the mistrial ruling and hence was entitled to claim double jeopardy. 400 U.S. at 478-488, 91 S.Ct. 547.

Let us now weave the strands. As the court below (Brieant, J.) honestly acknowledged, the mistrial was not granted for the benefit of Glover but for the benefit of his co-defendants. Second, Glover had done nothing to bring about the contretemps that resulted in the declaration of a mistrial. See e. g. United States v. Tinney, 473 F.2d 1085 (3 Cir.), cert. denied, 412 U.S. 928, 93 S.Ct. 2752, 37 L.Ed.2d 156 (1973). Third, in contrast to Jorn, where Mr. Justice Stewart argued from the fact that the prosecutor had not requested the mistrial, here the prosecutor had done just that. Fourth, inadequacy of the government’s proof discovered after the jury is empaneled — here the inability to use Glover’s admission against him —does not prevent jeopardy from attaching since the defendant had the right to seek a favorable verdict from the first jury. Downum v. United States, supra, 372 U.S. at 736, 83 S.Ct. 1033; see also United States v. Walden, 448 F.2d 925, 927-928 (4 Cir. 1971). Fifth, evidence had actually been offered against Glover — beyond the situation in Downum, supra, and Somerville, supra, where no evidence had been presented. Sixth, a permissive attitude toward mistrials in multiple defendant conspiracy cases could lead to an erosion, bit by bit, of the double jeopardy provision — an undesirable result, we think.

In the federal courts particularly, we have confronted, with continued anxiety, the growth of conspiracy cum substantive counts against diverse defendants, not all of whom are charged in all counts. Clear voices have sounded notes of warning. See, e. g., Jackson, J., concurring in Krulewich v. United States, 336 U.S. 440, 453-454, 69 S.Ct. 716, 93 L.Ed. 790 (1949); Douglas, J., dissenting in Schaffer v. United States, 362 U.S. 511, 524, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960); see Developments in the Law: Criminal Conspiracy, 72 Harv.L.Rev. 920, 978-83 (1959). Note, The Conspiracy Dilemma, 62 Harv.L.Rev. 276 (1948). See also United States v. Mallah, 503 F.2d 971, at 985-987 (2 Cir. 1974).

Here, Glover, a minor defendant, was charged only in the conspiracy count.

Since certain rules of evidence have been exalted in recent years to the status of constitutional principles, e. g., Bruton v. United States, supra; Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the problem of fairly managing a trial with multiple conspirator defendants has become manifestly more difficult.

Here the prosecutor failed to recognize that under the Bruton rule, redaction is not always a panacea. The judge ruled, when he was asked for a ruling, that redaction could not cleanse the statement for Bruton purposes. The judge would presumably have reached the same result if he had been shown the written reports of Glover’s oral statements, with an exposition of what the Government intended to prove, before the trial began. If the Government had sought and obtained the ruling in advance, the trial of Glover could have been severed from the trial of the other defendants, and he could have been tried alone. We have now come full circle from the Delli Paoli-Bruton problem. It was not appellant’s fault that the prosecutor failed to avail himself of his right under amended Rule 14 of the Criminal Rules to show the statement of the defendant to the judge {in camera if necessary) for a Bruton ruling before trial.

As the Chief Justice commented in Jorn, supra, “ . . . this record shows nothing to take appellee’s claims outside the classic mold of being twice placed in jeopardy for the same offense.” 400 U.S. at 488, 91 S.Ct. at 558.

Nor can we assume that because law enforcement agents were ready to testify to Glover’s alleged oral admissions, appellant would necessarily have been convicted by the first jury. The jurors might have disbelieved the agents or disapproved of the conditions under which the agents got the admissions. It simply elides the problem to assume guilt. Cf. Mr. Justice Marshall’s dissent in Somerville, supra, 410 U.S. at 481, 93 S.Ct. 1066.

The danger lies in the gradual erosion of constitutional doctrine. An ambiguous constitutional rule in favor of personal liberty should not be as malleable as an ambiguous statute. Many and unpredictable are the sources of conflicting rights among themselves in the trial of co-defendants, especially in conspiracy cases. We are reluctant to open the field to mistrial for the benefit of one defendant at the cost of the valued right of another defendant to go to the jury of his selection in the circumstances of this case.

In this type of case, the means for the prosecution to protect its legitimate interests are generally at hand. It will be worth the possible sacrifice of public justice in the case of Glover if this decision alerts prosecutors to enlist the willing aid of trial courts fully to explore Bruton problems before the jury comes into the box.

We recognize that the District Judges have given thoughtful consideration to this novel problem.

In the particular circumstances shown, the conviction is reversed. It is ordered that the indictment against Glover be dismissed.

      . Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), held that the admission of a co-defendant’s confession which implicated the defendant at a joint trial constituted prejudicial error even though the trial court instructed the jury that the confession could only be used against the co-defendant and must be disregarded with respect to the defendant. The decision was based upon “petitioner’s constitutional right of cross-examination.” 391 U.S. at 137, 88 S.Ct. at 1628. It overruled Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957).

      . This was the only count in which Glover was named.

      . Appellant’s Notice of Appeal from Judge Brieant’s original order was dismissed by this Court as untimely filed.

      . There was also a fourth similar oral admission of Glover at a prearraignment interview with Assistant U.S. Attorney Peffer. “Oral statements [as in Bruton] will present special problems, for there is a risk that the witness in testifying will inadvertently exceed permissible limits.” Bruton v. United States, supra, 391 U.S. at 144, 88 S.Ct. at 1632. (White, J., dissenting).

      . The Court thought that “Glover’s participation in the narcotics distribution conspiracy was minimal. He was at most a low level distributor.” Opinion on motion to dismiss indictment p. 6-d.

      . An early ease rejected the notion that only a final verdict could put the defendant in jeopardy because “there is a wide difference between a verdict given and the jeopardy of a verdict.” Commonwealth v. Cook, 6 S. & R. 577, 596 (Pa.1822). This “became the federal rationale.” See Sigler, Double Jeopardy 42 n.14 (1969).

      . The mistrial respecting Glover was declared on July 23, 1973. The matter was not sent to the assignment committee of the District Court for assignment to another judge until December 24, 1973. Glover was not convicted upon the retrial until May 8, 1974, more than eight months after the original trial. lie had been indicted on April 17, 1973. In recent years, we have come to pay more than casual homage to the right to a speedy trial.

      . The Double Jeopardy Clause of the Fifth Amendment has latterly been extended to state trials under the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), overruling Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937).

      . The Supreme Court has denied certiorari in several multiple defendant cases, in which mistrial had been declared as to one or more defendants without consent, both when the Court of Appeals had denied a claim of double jeopardy, Oelke v. United States, 389 F.2d 668 (9 Cir. 1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1420, 20 L.Ed.2d 286 (1968); United States v. Chase, 372 F.2d 453 (4 Cir.), cert. denied, 387 U.S. 907, 913, 87 S.Ct. 1688, 18 L.Ed.2d 626 (1967), and, after Jorn, when the Court of Appeals had accepted such a claim, United States v. Tinney, 473 F.2d 1085 (3 Cir.), cert. denied, 412 U.S. 928, 93 S.Ct. 2752, 37 L.Ed.2d 156 (1973). The Supreme Court, however, has not decided on the merits any multiple defendant case involving the declaration of a mistrial before verdict.

      . Mr. Justice Douglas has construed this case to mean simply that a mere irregularity of procedure does not always amount to double jeopardy. See dissent in Gori v. United States, 367 U.S. 364, 371 n.2, 81 S. Ct. 1523, 6 L.Ed.2d 901 (1961).

      . The majority not only limited its ruling to an acceptance of the state’s procedural rules, but specifically reaffirmed that “[t]lie determination by the trial court to abort a criminal proceeding where jeopardy has attached is not one to be lightly undertaken, since the interest of the defendant in having his fate determined by the jury first empaneled is itself a weighty one. United States v. Jorn, supra.” 410 U.S. at 471, 93 S.Ct. at 1073.

      . See also dissenting opinion of Douglas, J., Gori v. United States, supra, 367 U.S. at 370. 81 S.Ct. 1523.

      . We recall tlie prescient words of Justice Frankfurter: “After all, tlie prosecution could use tlie confession against tlie confessor and at the same time avoid such weighty unfairness against a defendant who cannot be charged with the declaration by not trying all the co-conspirators in a single trial.” Delli Paoli v. United States, supra, 352 U.S. at 248, 77 S.Ct. at 303 (dissenting opinion).

      . Even in the absence of a severance motion by the defendant, we see no reason why the prosecutor cannot show the statement to the judge for his ruling in advance of trial. In many cases there will be no need for in camera presentation. In this case, the prosecution had freely given Glover’s statement to his counsel without any apparent restriction on his showing it to the attorneys for the co-defendants.
      Mr. Justice White was prophetic in seeing tlie problem: “If deletion is not feasible, then the Government will have to choose either not to use the confession at all or to try tlie defendants separately.” Bruton v. United States, supra, 391 U.S. at 143-144, 88 S.Ct. at 1632 (dissenting opinion). See Note, Joint Single Trials under Rules 8 and 14 of Federal Rules of Criminal Procedure, 74 Yale L.J. 553, 564-65 (1965).

      . It would be stultifying to treat this appeal as involving “abuse of discretion.” We do not cast the issue in those terms. In this case, the court below did not act erratically as the judges in some other cases cited may have. As Mr. Justice White i>ointed out in his dissent in Somerville, supra, the cases of Downum and Jorn “made it quite clear that the discretion of the trial court to declare mistrials is reviewable and that the defendant’s right to a verdict by his first jury is not to be overridden except for ‘manifest necessity.’ ” 410 U.S. at 474, 93 S.Ct. at 1075.


author: HEANEY, Circuit Judge.

text:
    Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Appellant, v. ENGINEERED PRODUCTS, INC., a corporation, Appellee.
    No. 74-1212.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 13, 1974.
    Decided Nov. 12, 1974.

      Darryl J. Anderson and Jacob I. Karro, Attys., Dept, of Labor, Washington, D. C., for appellant.
    Francis A. Casserly, Clayton, Mo., for appellee.
    Before MATTHES, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.
   HEANEY, Circuit Judge.

The Secretary of Labor brought this action under § 17 of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., seeking to enjoin the defendant from violating the equal pay provisions of the Act. The defendant served a deposition subpoena and written interrogatories on the Secretary, requesting the Secretary to produce investigative reports and notes made by Department of Labor compliance officers, to reveal the identities of persons who had been interviewed concerning the alleged violations, and to produce any written statements obtained from such persons. The Secretary refused to disclose the identities of persons who had given information to the Department, or to turn over their statements, interposing a formal claim of privilege and confidentiality. He filed a motion for a protective order, claiming that the information sought was privileged and that the defendant had failed to make the required showing of need and inability to obtain the information by independent means. Fed.R.Civ.P. 26(b)(3). He did, however, agree to provide the defendant with all information in his possession which would not reveal the identities of his “informers.”

The District Court ordered the Secretary to produce the documents requested in the subpoena, but narrowed the scope of the discovery by providing that the Secretary could delete from his response:

* * -x- (1) any facts or matters as to which said employee or other person will not testify at the time of this cause; and (2) the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of plaintiff concerning the litigation * * *.

Although the wording of this proviso could be clearer, its effect was to compel the Secretary to decide who his witnesses would be, and to turn over to the defendant those portions of statements in his possession which would be testified to at trial. The order was entered on December 3, 1973, and the trial was simultaneously reset for February 25, 1974. An order requiring the Secretary to answer the interrogatories, containing a similar provision for deletion, was entered on January 21, 1974.

The Secretary failed to fully comply with the orders, and the court dismissed the action with prejudice. The Secretary appeals that dismissal. We vacate the order dismissing the action and remand the case for further proceedings.

There is a privilege in FLSA enforcement actions which permits the Secretary to withhold the names of people who have given statements as well as the statements themselves. See, Mitchell v. Bass, 252 F.2d 513, 516-517 (8th Cir. 1958) (dictum); Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303, 305 (5th Cir. 1972); United States v. Hemphill, 369 F.2d 539, 542 (4th Cir. 1966); Mitchell v. Roma, 265 F.2d 633, 635 (3rd Cir. 1959). Although the privilege is frequently referred to as an “informer’s privilege,” that is a reference which we do not favor. The persons to be protected by the privilege are employees with legitimate complaints, exercising their constitutional and statutory right to present their grievances to the government. They are not the paid undercover agents, often operating on the fringes of criminality, who we frequently associate with the word “informer.”

The rationale behind the privilege is that enforcement of the Act is highly dependent on the cooperation of, and statements given by, employees. See, United States v. Julius Doochin Enterprises, Inc., 370 F.Supp. 942, 944 (M.D. Tenn.1973). That cooperation may not be forthcoming unless the government can assure confidentiality:

-x- -x- -x The average employee involved in this type of action is keenly aware of his dependence upon his employer’s good will, not only to hold his job but also for the necessary job references essential to employment elsewhere. Only by preserving their anonymity can the government obtain the information necessary to implement the law properly. * * *

Writz v. B. A. C. Steel Products, Inc., 312 F.2d 14, 16 (5th Cir. 1962).

All agree that the privilege is a qualified one, and that it must give way when the defendant’s need for the information outweighs the government’s interest in protecting the source and in gathering the information. At the discovery stage of litigation of this type, it is usually held that a defendant who has made no greater showing of need than that made here, has made an insufficient showing to outweigh the government privilege. Consequently, the names of those who have given statements, the statements themselves, or both, are withheld. See, e. g., Hodgson v. Charles Martin Inspectors of Petroleum, Inc., supra 359 F.2d at 306-307; United States v. Hemphill, supra 369 F.2d at 542; Mitchell v. Roma, supra 265 F.2d at 636. But see, Wirtz v. Rosenthal, 388 F.2d 290 (9th Cir. 1968). As originally framed, therefore, the defendant’s interrogatories and subpoena were too broad, and defendant conceded that at oral argument. We turn, then, to the actual orders which led to the dismissal.

We believe that the District Court orders as framed were erroneous, because the defendant had not made a sufficient showing of need for the material so far in advance of trial, and because we are not convinced that the court took adequate notice of the difference between the discovery and immediate pretrial stages. The defendant had a right to know the charges, dates, names of the underpaid employees, and names of those persons known to the plaintiff who had information concerning the issues. It had received all of this information. In our view, in this particular case, the government’s interest in confidentiality outweighed the defendant’s need for the statements of proposed government witnesses, at least at the discovery stage.

The discoverability of the employee statements is governed by Rule 26(b)(3), because those statements are documents “prepared in anticipation of litigation or for trial.” That rule provides that discovery may be compelled

* * * only upon a showing that the party seeking discovery has substantial need for the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. * * *

Here, we are not convinced that the defendant had adequately established his “substantial need” for the requested information, at the time production was ordered. We recognize that the trial court has wide discretion in determining the existence of what used to be referred to under the old rules as “good cause.” See, Mitchell v. Bass, supra 252 F.2d at 518-519. But the record contains little from which to conclude that the defendant has “substantial need” for the information at such an early point in the litigation. The affidavit of defendant’s Vice President, R. C. Shirtum, contained only vague assertions that the requested information would “expedite” the case, “facilitate the production of proof,” “narrow the issues,” and “reduce the evidence.” The contested issues as to wage rates were peculiarly within the defendant’s own knowledge, and it appears that the primary use of the requested statements would be for impeachment purposes on the crucial issue of whether or not the work performed by males and females under the same job title was identical. Access for impeachment purposes should be handled at the pretrial stage. See, Hodgson v. Charles Martin Inspectors of Petroleum, Inc., supra 459 F.2d at 307.

The wisdom of leaving such decisions to pretrial is reinforced by the second showing which the movant must make in order to effect discovery under Rule 26(b)(3): that he is “unable without undue hardship to obtain the substantial equivalent of the materials by other means.” The employer has expressed a fear that the employees will not testify truthfully about the differences in the work performed by males and females. Yet, he made no effort prior to his discovery motion to obtain statements on his own or depose any of his own employees. If he had taken statements and depositions on his own, he may have discovered that his fear was an imaginary one, and that no conflict exists as to the work performed. If, on the contrary, a strong conflict appeared, his need for discovery of prior impeaching statements would be more manifest to the trial court.

On remand, the trial court will be faced with the issue of the disclosure required at the pretrial stage. The defendant contends that, even if he fails at the discovery stage, he will surely have the right at the pretrial stage to the names of the prospective witnesses and their statements. On the issue of the witness lists, the government states that it will comply with an order to turn over the names of prospective witnesses. See, Wirtz v. Hooper-Holmes Bureau, Inc., 327 F.2d 939 (5th Cir. 1964). We agree with Hooper-Holmes that a court, in its discretion, may require disclosure of the names of prospective witnesses at a reasonable time before trial. See also, United States v. Hemphill, supra 369 F.2d at 542 (dictum); United States v. Julius Doochin Enterprises, Inc., supra; Shultz v. Farino Excavating Co., 55 F.R.D. 346, 347 (E.D.Mich.1972). A “reasonable time” is to be measured by balancing the defendant’s need against the vulnerability of the employee witnesses to the defendant employer. Here, given the limited purposes for which the defendant would need the names, five to ten days seem sufficient.

A more difficult issue on remand is whether the statements of prospective witnesses must be given to the defendant. The government objects to turning over the statements until after each witness has testified on direct examination. This is essentially the procedure permitted in criminal cases under the Jencks Act. 18 U.S.C. § 3500(b). The government contends that it may be able, and would prefer, to prove its case without using employee witnesses. Its desire to do all it can without employee witnesses is a proper one. As the Third Circuit recognized in Mitchell v. Roma, supra 265 F.2d at 637:

* * * The relationship between an employer and an employee is a sensitive one. * * * The statutory prohibition against retaliation provides little comfort to an employee faced with the possibility of subtle pressures by an employer, which pressures may be so difficult to prove when seeking to enforce the prohibition.

The defendant argues that, since the government will turn over the statements in full after direct examination, the government’s interest in withholding the information for the ten days preceding trial is miniscule, and is outweighed by the defendant’s accelerating need to fully prepare his case. See, United States v. Julius Doochin Enterprises, Inc., supra 370 F.Supp. at 945; Walling v. Richmond Screw Anchor Co., 4 F.R.D. 265, 269 (E.D.N.Y.1943).

A resolution of this dilemma must be entrusted to the sensitive discretion of the trial court. One alternative is for the District Court to employ the Jencks Act approach as urged by the government, allowing the defendant to examine the statements of witnesses only after the completion of direct examination. It may be that, where the only possible use of the statement is for impeachment purposes, such an approach will be sufficient to protect the defendant. A second alternative would be for the District Court to order pretrial disclosure only of a summary of the evidence which will be presented by each witness it proposes to call, and not the statements themselves. See, Wirtz v. Robinson & Stephens, Inc., 368 F.2d 114, 116 (5th Cir. 1966); Wirtz v. Hooper-Holmes Bureau, Inc., supra 327 F.2d at 941. A third alternative would be to order production of the statements themselves, either at the same time as the witness list is ordered, see, e. g., United States v. Julius Doochin Enterprises, Inc., supra, or at a shorter period before the witness’ appearance. See, e. g., United States v. Kelsey-Hayes Wheel Co., 15 F.R.D. 461 (D.Mich.1954) (twenty-four hours in advance of testimony). As the trial date draws nearer, the defendant’s need will be easier to assess, and at the same time, the government will be more likely to know whether it must use employee witnesses, and if so, which ones.

If the District Court chooses to employ the third alternative of ordering production of the statements before trial, it would be appropriate for it to consider deleting certain matters from the statements. In the Julius Doochin case, the pretrial order gave the government the right to request the court to excise any portions of the statements which would tend to reveal the identities of others who had given statements but who would not be witnesses. United States v. Julius Doochin Enterprises, Inc., supra 370 F.Supp. at 945. In addition, the District Court should seriously consider permitting the deletion from any statements of the dates on which they were given. Such information will rarely have any probative value, but may fuel an employer’s desire for retaliation by indicating which of several employees was the first to complain to the authorities. Moreover, the court may, in its discretion, accompany such pretrial disclosure order with a protective order to the effect that the material so produced is not to be used for any purpose whatsoever except the trial. We repeat that these employees have an absolute right to complain of the law’s violation, and it is the court’s duty to assure that they are protected in the exercise of that right.

In summary, although we do not here lay down any fixed rule governing pretrial disclosure of the names and statements of employees, and although the balancing of the competing interests must be left to the sound discretion of the trial court, we urge the court to take seriously the government’s reasons for desiring to withhold the statements as long as possible. The government’s counsel has asserted that the Secretary is constantly losing witnesses in FLSA actions, and that he wishes to limit the period of potential or even imagined harassment. We are confident that, in the light of the important policies underlying enforcement of the Act, the District Court will carefully weigh the interests in this case on remand.

The order dismissing the action for failure to comply with the production order is vacated, and the cause remanded for further proceedings.

      . The Secretary attempted to contact all persons who had given statements, seeking their permission to release them. Of the persons contacted, five consented to the disclosure, and those five statements were turned over to the defendant. The statements of others, who did not consent or who could not be reached, were not produced, nor were the names of persons, other than the five, who liad been interviewed in preparation for the case.

      . It is settled law that a party in a civil action can ordinarily discover from liis opponent the names of those persons known to have information relevant to the lawsuit. From the beginning, the Secretary produced such a list. It is equally settled that discovery is not ordinarily the proper stage in litigation to compel from an opponent the names of his prospective witnesses. See, 8 Wright & Miller, Federal Practice and Procedure § 2013 at 106-107 (1970). See also, Wirtz v. Continental Finance & Loan Co. of West End, 326 F.2d 561, 564 (5th Cir. 1964); Wirtz v. Hooper-Holmes Bureau Inc., 327 F.2d 939, 942-943 (5th Cir. 1964) (dictum); Wirtz v. B. A. C. Steel Products, Inc., 312 F.2d 14, 16 (5th Cir. 1962).
      Since the period between the order to produce and the trial date was almost three months, we view it as a discovery and not an immediate pretrial order. We do not say that a District Court may never compel compilation or production of witness lists at the discovery stage. But we do note that it is rare for a trial court to do so, and the infrequency of such an order should be borne in mind when assessing the propriety of the discovery order here.

      . Admittedly, the list of knowledgeable persons supplied by the government was a fairly long one, including the names of seventeen female injection machine molders and two males who allegedly performed the same job at a higher wage. But, on the key issue of the nature of the work performed by the males, the employer had full knowledge of the facts. Moreover, he could have interviewed or deposed the nineteen molders, as well as any other employees who supervised or observed their work. Additionally, the defendant could have deposed or interviewed the five employees whose statements had been released.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Freeman JOHNSON, Defendant-Appellant.
    No. 74-1375.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 23, 1974.
    Decided Nov. 26, 1974.
    Certiorari Denied March 31, 1975.
    See 95 S.Ct. 1448.

      Robert A. Zaban, Indianapolis, Ind., for defendant-appellant.
    John R. Wilks, U. S. Atty., Fort Wayne, Ind., John S. Leonardo, Asst. U. S. Atty., South Bend, Ind., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and STEVENS, Circuit Judge.
   PER CURIAM.

Defendant-appellant Freeman Johnson was convicted by a jury of three counts of knowingly and intentionally distributing heroin in violation of 21 U.S.C. § 841 (a)(1). Pursuant to 21 U.S.C. § 851 a prior conviction information was also filed against Johnson charging him with two prior narcotic convictions in state courts. Appellant was sentenced under the double penalty provisions of 21 U.S.C. § 841(b)(1)(A) to five years on each count to run concurrently and a special parole term of six years.

The facts in this case are very simple. An undercover policeman testified that on three occasions he bought capsules containing heroin from defendant. A chemist verified that the capsules contained heroin. Defendant did not testify nor was any evidence introduced on his behalf. The defense did submit a proposed lesser included offense instruction relating to the crime of simple possession of a controlled substance which was rejected.

The only alleged error raised in regard to the conviction itself is the refusal to give this lesser included offense instruction. Defendant recognizes that present case law indicates that such an instruction is proper only when the charged greater offense requires that the jury find a disputed factual element which is not a requisite for conviction of the lesser included offense. Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); United States v. Hephner, 410 F.2d 930 (7th Cir. 1969). Here such a disputed factual element would have to concern the question of whether there was a distribution. At trial, however, there was no attempt made to dispute the fact of distribution as opposed to mere possession. Defendant, though, argues that to require that there be such a disputed factual issue infringes on his Fifth Amendment right to remain silent since he would have to testify in order to raise a factual challenge. This argument is without merit. As the Government states, the disputed issue could be introduced by means of defense witnesses, other than the defendant, or even by cross-examination of prosecution witnesses. Upholding the rejection of this tendered instruction does not impair a defendant’s right to remain silent.

We turn to another issue. At oral argument we sua sponte questioned the use of state court convictions to invoke the double penalty provision of § 841(b) (1) (A) since the statute refers to “prior convictions . . . for an offense punishable under . . . any . . . other law of the United States relating to narcotic drugs . . . . ” The phrase “law of the United States” would appear to encompass only federal laws and not state laws. At our request the Assistant United States Attorney has filed a memorandum addressing this issue. Though no cases were found interpreting this section, the Government did note the specificity of the language of 21 U.S.C. § 849(e) which defines “a special drug offender” as one who “has previously been convicted in courts of the United States or a State or any political subdivision thereof . . . . ” Moreover, we have been informed that it is the policy of the Justice Department to limit the use of prior convictions under § 841 to federal convictions only. Thus, the filing of the prior conviction information and sentencing pursuant to the double penalty provisions were improper. Although the sentence imposed was within the statutory limits of the penalty provisions of § 841 relating to first convictions, we believe the defendant must be resentenced under the proper portion of the statute, especially in view of the fact that the six year special parole term is a mandatory requirement under the double penalty provision.

Accordingly, the judgment of conviction is affirmed; the cause is remanded with directions that the defendant be resentenced.

      . In the case of a controlled substance in schedule I or II which is a narcotic drug, such person shall be sentenced to a term of imprisonment of not more than 15 years, a fine of not more than $25,000, or both. If any person commits such a violation after one or more prior convictions of Mm for an offense punishable under tiiis paragraph, or for a felony under any other provision of this subchapter or subchapter II of this chapter or other law of the United States relating to narcotic drugs, marihuana, or depressant or stimulant substances, have become final, such person shall be sentenced to a term of imprisonment of not more than 30 years, a fine of not more than $50,000, or both. Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a special parole term of at least 3 years in addition to such term of imprisonment and shall, if there was such a prior conviction, imj)Ose a special parole term of at least 6 years in addition to such term of imprisonment.


author: EUGENE A. WRIGHT, Circuit Judge:

text:
    Barbara Ann CHRISMAN, Plaintiff-Appellant, v. SISTERS OF ST. JOSEPH OF PEACE, an Oregon Corporation doing business as Sacred Heart General Hospital et al., Defendants-Appellees.
    No. 72-3087.
    United States Court of Appeals, Ninth Circuit.
    Nov. 21, 1974.
    Charles O. Porter (argued), Eugene, Or., for plaintiff-appellant.
    Frank E. Nash (argued), King, Miller, Anderson, Nash & Yerke, Portland, Or., for defendants-appellees.
    Before WRIGHT and SNEED, Circuit Judges, and JAMESON, District Judge.

       Of the District of Montana.

   OPINION

EUGENE A. WRIGHT, Circuit Judge:

In deciding this appeal, we hold that the district court correctly dismissed an action under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 for declaratory judgment, equitable relief and damages brought against a private hospital because of its refusal to permit sterilization of a woman patient. We dispose of the matter on jurisdictional grounds and need not consider all issues raised by the plaintiff-appellant.

The action was instituted by a 23-year old married woman against the defendants who do business as Sacred Heart General Hospital in Eugene, Oregon. Also joined were the hospital administrator and physicians who were members of the hospital’s sterilization committee. It was alleged that the denial of the request of the plaintiff for a tubal ligation following birth of her second child was motivated primarily by religious beliefs. After Sacred Heart Hospital refused permission, the plaintiff had been transported across the city to the Eugene Hospital where the surgery was performed. The defense asserted that refusal at Sacred Heart Hospital was based on good medical practice and not religious reasons.

The trial judge before whom the cause was tried empaneled a jury to decide by special verdict the question whether the denial of sterilization was motivated primarily by medical or religious considerations. The jury being unable to reach a verdict, the trial judge entertained and granted a defense motion for judgment of dismissal pursuant to Rule 50(b), Fed. Rules Civ.Proc. We affirm, concluding that dismissal was proper since the court lacked jurisdiction to grant the relief sought by the plaintiff.

The complaint for equitable relief was properly dismissed for three reasons: (a) the district court lacked power to compel the defendants to do a sterilization procedure in their hospital, (b) the defendants’ alleged actions were not taken under “color of state law,” as required by 28 U.S.C. § 1343, and (c) the issue is mooted by the plaintiff’s having had her tubal ligation elsewhere.

I.

POWER TO GRANT EQUITABLE RELIEF

Appellant’s claim for writ of mandamus and injunction was based on her assertion that the defendants acted under color of state law since the hospital received so-called Hill-Burton construction funds, enjoyed some state tax exemption and was generally under state regulation.

But this argument has been seriously limited by action of Congress to prohibit courts from using receipt of Hill-Burton funds as the basis for compelling an individual or hospital to perform any sterilization procedure if the performance of such procedure is prohibited by the hospital on the basis of religious beliefs or moral convictions. Section 401(b) was clearly intended by Congress to prevent suits such as that advanced by Appellant. In Taylor v. St. Vincent’s Hospital, 369 F.Supp. 948, 950 (D.Mont.1973), the court held in a case in which the defendant hospital had refused on religious grounds to perform a sterilization, “By its plain language, this Act prohibits any court from finding that a hospital which receives Hill-Burton funds is acting under color of state law.” See also Watkins v. Mercy Medical Center, 364 F.Supp. 799 (D.Idaho 1973).

It has long been held that Congress has the power to modify and alter the jurisdiction which it has conferred on inferior courts of the United States. Cary v. Curtis, 44 U.S. (3 How.) 236, 11 L.Ed. 376 (1844).

The Supreme Court has consistently upheld restrictions placed on the ability of the inferior courts to issue injunctive relief with respect to designated causes of action. In Lauf v. E. G. Shinner & Co., 303 U.S. 323, 330, 58 S.Ct. 578, 582, 82 L.Ed. 872 (1938), the Court upheld a limitation on the power of the district courts to grant injunctions in labor disputes: “There can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the United States” citing Kline v. Burke Construction Co., 260 U.S. 226, 233, 43 S.Ct. 79, 67 L.Ed. 226 (1922).

Appellant argues that § 401(b) is constitutionally infirm as a violation of the Establishment Clause. The contention lacks merit. Plaintiff fails to distinguish between action taken to preserve the “government's] neutrality in the face of religious differences” and action which affirmatively prefers one religion over another.

Here Congress sought to retain its neutrality in the debate over the morality of voluntary sterilizations by preventing the reception of federal health program funds from being used as a basis for compelling a hospital to perform such surgery against the dictates of its religious or moral beliefs. In Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), the Supreme Court held that South Carolina could not require, as a condition of receiving unemployment benefits, that a Seventh-Day Adventist submit herself for employment which required her to work on Saturdays in violation of her religious beliefs. The Court stated that:

In holding as we do, plainly we are not fostering the “establishment” of the Seventh-day Adventist religion in South Carolina, for the extension of unemployment benefits ... reflects nothing more than the government obligation of neutrality in the face of religious differences.

Sherbert, supra at 409, 83 S.Ct. at 1797. The Court also noted that “It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege,” at 404, 83 S.Ct. at 1794.

The Court has recognized the danger that government action might “run afoul of the Establishment Clause” but has stressed that this

danger cannot be allowed to prevent any exception no matter how vital it may be to the protection of values promoted by the right of free exercise. By preserving doctrinal flexibility and recognizing the need for a sensible and realistic application of the Religion Clauses “we have been able to chart a course that preserved the autonomy and freedom of religious bodies while avoiding any semblance of established religion.” [Citation omitted.]

Wisconsin v. Yoder, 406 U.S. 205, 221, 92 S.Ct. 1526, 1536, 32 L.Ed.2d 15 (1972). Here Congress quite properly sought to protect the freedom of religion of those with religious or moral scruples against sterilizations and abortions. The need of denominational hospitals for such protection was recognized in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). In striking down the Georgia criminal abortion statute, the Court ruled that a mandatory abortion screening committee was not required as a means of protecting the rights of individual physicians and denominational hospitals, since their religious and moral beliefs were protected by Georgia laws which permitted them to refuse to perform abortions:

And the hospital itself is otherwise fully protected. Under [Georgia law] the hospital is free not to admit a patient for an abortion. It is even free not to have an abortion committee. Further a physician or any other employee has a right to refrain, for moral or religious reasons, from participating in the abortion procedure. These provisions obviously are in the statute in order to afford appropriate protection to the individual and to the denominational hospital. (Emphasis added.)

Doe v. Bolton, 410 U.S. at 197-198, 93 S.Ct. at 750.

Similarly, the court in Watkins v. Mercy Medical Center, supra, held that § 401(b) properly permitted denominational hospitals to refuse to perform sterilizations since “To hold otherwise would violate the religious rights of the hospital.” 364 F.Supp. at 803. In Doe v. Bellin Memorial Hospital, 479 F.2d 756, 759-760 (7th Cir. 1973), the court held that “There is no constitutional objection to the decision by a purely private hospital that it will not permit its facilities to be used for the performance of abortions.”

However, application of § 401(b) does not dispose of this issue since appellant cites, in addition, the enjoyment by the hospital of tax exemptions, its regulation by the state and its performance of a public function as grounds for holding that it acted under color of state law with respect to 42 U.S.C. § 1983.

II.

COLOR OF STATE LAW

To state a cause of action under § 1983, it is essential that the defendant has acted under color of state law, Adickes v. S. H. Kress & Co., 398 U.S. 144, 188, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (Brennan, J., concurring opinion). There is no “precise formula” for determining the threshold at which the reception of aid or regulation by the state cloaks private actions with the col- or of state law, Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). However, under the decisions of this circuit, it seems clear that the involvement of the state in the actions of these defendants does not rise to the level of significance required to state a cause of action under § 1983.

Here, the defendants received since 1961 approximately 13 percent of their construction funds from the state and from federal agencies. Additionally, they were licensed by the state but were not compelled by state regulations to perform sterilizations on request.

Action under § 1983 has been permitted only when there has been significant involvement of the state in the specific activity complained of. In holding that the provision of a liquor license and “pervasive” regulation of private clubs did not convert private discrimination into “state” action, the Supreme Court in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627 (1972), held that

Our holdings indicate that where the impetus for the discrimination is private, the State must have “significantly involved itself with invidious discriminations,” ... in order for the discriminatory action to fall within the ambit of the constitutional prohibition.

The Court rejected the argument that state regulations which were not involved in supporting or compelling the racial discrimination supported a claim of state action:

However detailed this type of regulation may be in some particulars, it cannot be said to in any way foster or encourage racial discrimination. Nor can it be said to make the State in any realistic sense a partner or even a joint venturer in the club’s enterprise.

Moose Lodge, supra at 176-177, 92 S.Ct. at 1973.

In Martin v. Pacific Northwest Bell Telephone Co., 441 F.2d 1116, 1118 (9th Cir. 1971), we stated that:

[T]he violation of such constitutional rights is actionable, under federal law, only when committed by one who is “clothed with the authority of the state and . . . purporting to act thereunder.” Marshall v. Sawyer, 301 F.2d 639 (9th Cir. 1962).

Moreover, “[A]s well stated in Powe v. Miles, 407 F.2d 73, 81 (2d Cir. 1968), ‘the state must be involved not simply with some activity of the institution alleged to have inflicted injury upon a plaintiff but with the activity that caused the injury.’ ” Martin, supra at 1118, of 441 F.2d.

Similarly, in Adams v. Southern California First National Bank, 492 F.2d 324, 330 (9th Cir. 1974), we held that “[0]ne essential element for taking action under color of law is that the person act ‘with the knowledge of and pursuant to’ a State law, statute, etc., Adickes v. S. H. Kress & Co., 398 U.S. 144, 162 n. 23, [90 S.Ct. 1598, 1611, 26 L.Ed.2d 142] (1970).” The same view has been taken by other courts which have had occasion to review requests for relief under § 1983 involving the refusal of private hospitals to perform sterilizations or abortions. In Doe v. Beilin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973), the court rejected the argument that an abortion must be provided by a private hospital because of reception of Hill-Burton funds. The court ruled:

The facts that defendants have accepted financial support . . . from both the federal and state governments, and that the hospital is subject to detailed regulation by the State, do not justify the conclusion that its conduct, which is unaffected by such support or such regulation, is governed by § 1983.

Doe, supra at 761.

This decision was followed by the district court in Allen v. Sisters of St. Joseph, 361 F.Supp. 1212 (N.D.Texas, 1973), aff’d, 490 F.2d 81 (5th Cir. 1974) in refusing to order a tubal ligation to be performed in a hospital which opposed such voluntary sterilizations on religious grounds.

In cases involving challenges to hospital actions in dismissing physicians from hospital staffs, both the Tenth and Sixth Circuits have also followed this view. In Jackson v. Norton-Children’s Hospitals, Inc., 487 F.2d 502, 503 (6th Cir. 1973), the court affirmed a decision dismissing a § 1983 challenge based on the reception of Hill-Burton funds and the existence of state regulations. “Whenever state action has been discovered in the activities of an ostensibly private hospital something more than a partial federal funding is involved.”

The Court cited the case of Ward v. St. Anthony Hospital, 476 F.2d 671, 675 (10th Cir. 1973), where it was held that “the state must be involved in the activity causing the alleged injury before federal jurisdiction can be invoked.” That court also noted that “tax exemptions alone do not vest a private institution with state authority,” supra at 675. It also cited Place v. Shepherd, 446 F.2d 1239 (6th Cir. 1971), where the court affirmed the dismissal of a case in which the plaintiff alleged that several private hospitals had refused to hire her because of her exercise of First Amendment rights. The court held that the state involvement necessary to support a § 1983 claim required more than a state charter, provision of public funds, or the granting of tax exemptions, supra at 1245. See also Bright v. Isenbarger, 445 F.2d 412 (7th Cir. 1971).

In Simkins v. Moses Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), the court held that the use of Hill-Burton funds to establish a separate but equal hospital provided a basis for a § 1983 suit. There, however, the state was deeply involved in the objectionable activity, since it authorized the dual hospital system and directed the disbursement of Hill-Burton funds to perpetuate it. Hence the decision is distinguishable.

A number of other cases have held that a private hospital receiving Hill-Burton funds acts under color of state law if it is the only hospital in the area. In Shulman v. Washington Hospital Center, 319 F.Supp. 252 (D.C.1970), the court held that constitutional standards could be imposed on hospitals which “were the only hospitals in the area, and thus acquired a quasi-public character,” at 255. A similar result was reached in O’Neill v. Grayson County War Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973) (hospital acted under color of state law where it was the only hospital in the city, had Hill-Burton funding, had facilities which were leased from the county in return for their maintenance and operation). See also Sams v. Ohio Valley General Hospital Association, 413 F.2d 826 (4th Cir. 1969); Meredith v. Allen County War Memorial Hospital Com’n, 397 F.2d 33 (6th Cir. 1968).

Here, however, Sacred Heart Hospital is not in such a dominant or monopoly situation. Indeed plaintiff can scarcely make this argument since she in fact availed herself of the services of one of the other hospitals in the city in obtaining a tubal ligation.

Thus we find that the provision of 13 percent of Sacred Heart General Hospital’s construction costs since 1961 through the Hill-Burton and HEW programs, exemption from taxes and regulation by the state do not provide a basis for a § 1983 suit. Hence, it was proper to dismiss the complaint.

III.

MOOTNESS

The dismissal of appellant’s request for equitable relief can also be sustained on the ground that the issue is moot in light of appellant’s sterilization. The parties have stipulated that “Surgical sterilization by tubal ligation is generally considered permanent and irreversible, and plaintiff would not reasonably expect to ever be obligated to undergo such a procedure again.”

The court in Allen v. Sisters of Saint Joseph, 490 F.2d 81 (5th Cir. 1974), faced an identical situation. There the plaintiff had asked for an injunction requiring defendants to provide her with a tubal ligation. After their refusal, however, a sterilization was performed at another medical facility. The court ruled that “[W]e are unable to discern any viable controversy in the instant case that is susceptible to judicial resolution and relief,” supra at 82.

Here appellant acted on her own behalf and did not pretend to represent a class. Rivera v. Freeman, 469 F.2d 1159 (9th Cir. 1972). This is not an issue “capable of repetition, yet evading review” as in Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1973), Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911). Here the issue is more like that in DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 1706, 402 L.Ed.2d 164 (1974), where the action was dismissed as moot since the plaintiff would “never again be required to run the gantlet of the Law School’s admission process.” See also Hall v. Beals, 396 U.S. 45, 49, 89 S.Ct. 1624, 23 L.Ed.2d 38 (1969).

The Court in DeFunis also rejected the argument that mootness should not bar a decision on the merits where the issue was one of “great public interest,” supra at 316 of 416 U.S., at 1706 of 94 S.Ct. Hence, here, where appellant has obtained the sterilization she sought and where she proceeded on an individual basis, the request for equitable relief is moot and was properly dismissed.

However, appellant also sought a declaratory judgment and damages for the alleged violation of her rights. As the court in McCabe v. Nassau County Medical Center, 453 F.2d 698 (2d Cir. 1971) stated, “The cases make clear that the damage claim under 42 U.S.C. § 1983 is not mooted merely because [the plaintiff] no longer needs equitable relief. Powell v. McCormick, 395 U.S. 486, 495-500, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969),” supra at 702.

Although the damage claim and request for declaratory judgment are not mooted, the appellant has no cause of action since she failed to demonstrate that defendants acted under color of state law, see discussion supra. Since she has failed to bring her case under § 1983, we also affirm the dismissal of her request for damages and declaratory relief.

The judgment of the district court is Affirmed.

      . 42 U.S.C. § 1983:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

      . 28 U.S.C. § 1343:
      The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
      3) To redress the deprivation, under col- or of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;
      4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.

      . Note also that the stipulation of the parties ' # 30, C.R. 374, states:
      Defendant physician members of the Sterilization Committee of the medical staff did not consider it to be good medical practice to perform abdominal surgery under a general anesthetic to accomplish the irreversible sterilization of a 23 year old female who has one child, is pregnant and in good health with no substantial medical, surgical, obstetric, gynecological or psychological indications.

      . The judge stated (appellant’s brief, p. 5):
      [T]he evidence predominates so heavily in favor of the decision having been one of a medical decision and not based on religious beliefs, [the court] will grant the motion for directed verdict, based on the evidence as recited by the court, and on the further grounds as recited in the defendants’ memorandum.

      . Stipulation of the parties No. 5, C.R. 357, listed the hospital as having received, since 1961, $691,913 in Hill-Burton funds and $369,-537 of HEW funds, as part of a total construction budget of $8,035,241. Public funds thus accounted for approximately 13 percent of the total.

      . Health Programs Extension Act of 1973, Pub.L. 93-45, Title IV, § 401(b), 87 Stat. 95:
      The receipt of any grant, contract, loan, or loan guarantee under the Public Health Service Act, the Community Mental Health Centers Act, [or the Developmental Construction Act,] or the Developmental Disabilities Service and Facilities Construction Act by any individual or entity does not authorize any court or any public official or other public authority to require—
      (2) such entity to—
      (A) make its facilities available for the performance of any sterilization procedure or abortion if the performance of such procedure or abortion in such facilities is prohibited by the entity on the basis of religious beliefs or moral convictions.

      . 1973 U.S.Code Congressional and Administrative News, p. 1473.
      The background for subsection (b) of section 401 of the bill is an injunction issued in November 1972 by the United States District Court for the District of Montana in Taylor v. St. Vincent’s Hospital. The court enjoined St. Vincent’s Hospital, located in Billings, Montana, from prohibiting Mrs. Taylor’s physician from performing in that hospital a sterilization procedure on her during the delivery of her baby by Caesarian section.
      The suit to enjoin the hospital was brought under 42 U.S.C. 1983 (which authorizes civil action for redress of deprivation of civil rights by a person acting under color of law) and 28 U.S.C. 1343 (which grants United States district courts jurisdiction of actions (authorized by another law) to redress deprivation, under color of any State law, of a Constitutional right). In ruling on a motion to dismiss for lack of jurisdiction, the court stated that “the fact that the defendant [St. Vincents Hospital] is the beneficiary of the receipt of Hill-Burton Act [title VI of the Public Health Service Act] funds is alone sufficient to support an assumption of jurisdiction. . . .” The court also found two other factors (state licensing and tax immunity) that established a connection between the hospital and the State sufficient to support jurisdiction.
      Subsection (b) of 401 would prohibit a court or a public official, such as the Secretary of Health, Education, and Welfare, from using receipt of assistance under the three laws amended by the bill (the Public Health Service Act, the Community Mental Health Centers Act, and the Developmental Disabilities Services and Facilities Construction Act) as a basis for requiring an individual or institution to perform or assist in the performance of sterilization procedures or abortions, if such action would be contrary to religious beliefs or moral conviction.

        Supra at 1477:
      In addition, section 401 of the bill provides that receipt of financial assistance under any of the aforementioned Acts does not constitute legal basis for a judicial or administrative order requiring an individual to aid in performing a sterilization or abortion, if such activity is contrary to the individual’s religious or moral beliefs. Nor does receipt of financial assistance provide legal authority for a judicial or administrative order requiring the provision of personnel or facilities by any entity for the performance of sterilization or abortion, if such activity is contrary to the religious or moral beliefs of the personnel or prohibited by the entity for religious or moral reasons.

      . See also Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944); Lockerty v. Phillips, 319 U.S. 182, 187, 63 S.Ct. 1019, 1022, 87 L.Ed. 1339 (1943): “The Congressional power to ordain and establish inferior courts includes the power ‘of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good,’ ” [citation omitted]; Eldridge v. Richfield Oil Corp., 364 F.2d 909 (9th Cir. 1966), cert. denied, 385 U.S. 1020, 87 S.Ct. 750, 17 L.Ed.2d 556 (1967).

      . Sherbert v. Verner, 374 U.S. 398, 409, 83 S.Ct. 1790, 1797, 10 L.Ed.2d 965 (1963).

      . Everson v. Board of Education, 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711 (1947).

      . See also Tilton v. Richardson, 403 U.S. 672, 679, 91 S.Ct. 2091, 2096, 29 L.Ed.2d 790 (1971): “The simplistic argument that every form of financial aid to church-sponsored activity violates the Religion Clauses was rejected long ago in Bradfield v. Roberts, 175 U.S. 291, 20 S.Ct. 121, 44 L.Ed. 168 (1899).
      The crucial question is not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion.” and Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).

      . In Adams v. Southern California First National Bank, 492 F.2d 324, 334 n. 27 (9th Cir. 1974), we cited this ruling with approval.

      . But see Holmes v. Silver Cross Hospital of Joliet, Ill., 340 F.Supp. 125 (N.D.Ill.1972); Citta v. Delaware Valley Hospital, 313 F.Supp. 301 (E.D.Pa.1970); Bricker v. Sceva Speare Memorial Hospital, 339 F.Supp. 234 (D.N.H. 1972).

      . Stipulation of the parties No. 37, C.R. 379.