author: CUMMINGS, Circuit Judge.

text:
    Elmo E. KOOS, Sr. and Caroline M. Koos, Plaintiffs-Appellants, v. FIRST NATIONAL BANK OF PEORIA, Defendant-Appellee.
    No. 73-1694.
    United States Court of Appeals, Seventh Circuit.
    Heard Feb. 11, 1974.
    Decided May 17, 1974.

      John F. Sloan, Peoria, Ill., for plaintiffs-appellants.
    Carroll Baymiller, Peoria, Ill., for defendant-appellee.
    Before SWYGERT, Chief Judge, KILEY, Senior Circuit Judge, and CUMMINGS, Circuit Judge.
   CUMMINGS, Circuit Judge.

The two named plaintiffs filed a class action complaining that the defendant bank was charging usurious interest. The gravamen of the complaint was that defendant was charging them in excess of the 8 per cent rate of interest permissible under the Illinois Usury Law. 111. Rev.Stats.1973, ch. 74, § 4. The National Bank Act provides for the recovery of twice the amount of interest illegally charged, but contains a two-year statute of limitations. Illegality is to be determined under state law, subject to an exception in the Act not relied on by defendant. 12 U.S.C. §§ 85 and 86. The plaintiffs’ theory is that since the 8% interest charged on their loan was calculated for a 360-day period, the amount of interest charged in a full year was more than 8%. The complaint admits that the loan rate paid by plaintiffs was reduced below 8% effective January 1, 1971.

. Plaintiffs’ loan was obtained on June 1, 1970, and was for $56,100. Their note was secured by the pledge of four savings and loan certificates for withdrawal of capital accounts totaling $18,000 and by the assignments of the cash surrender values under two life insurance policies totaling $40,650.

The district court granted defendant’s motion to dismiss the action with prejudice. 358 F.Supp. 890. The dismissal was largedly based upon the exception in the Illinois usury statute, which provides in pertinent part:

“It is lawful to charge, contract for, and receive any rate or amount of interest or compensation with respect to the following transactions:
* -X- * -X- -X- *
“(b) Advances of money, repayable on demand, to an amount not less than $5,000, which are made upon warehouse receipts, bills of lading, certificates of stock, certificates of deposit, bills of exchange, bonds or other negotiable instruments pledged as collateral security for such repayment, if evidenced by a writing; * * (Ill. Rev.Stats.1973, ch. 74, § 4.)

As the court below pointed out:

“The statute is quite apparently designed to protect only relatively small, personal, non-business borrowers from high interest rates, and this exception speaks in very general terms as to various types of relatively liquid collateral security pledged for repayment of a loan over $5,000. While the collateral in the present case may not exactly be the ordinary certificates of stock or certificates of deposit in all respects and in a purely technical sense, any variance is not significant in view of the apparent purpose of the statute. There is simply no justification for a blindly technical reading of this exception in view of the general language used.” 358 F.Supp. 892.

We agree with this construction of the statute. As the plaintiffs admitted at the oral argument, on default the bank would obtain their entire savings and loan deposits and the cash surrender value of the life insurance policies. Surely this satisfies the purpose of the exception. It was not unreasonable to consider the savings and loan certificates as “certificates of stock” within Section 4(b). Cf. Tcherepnin v. Knight, 389 U.S. 332, 339, 88 S.Ct. 548, 19 L.Ed.2d 564. Since the cash surrender value of the insurance policies was withdrawable at any time by the policyholder, the district court was also justified in considering the policies to be equivalent to “certificates of deposit” within the meaning of the exception. Although plaintiffs argue to the contrary, the phrase “or other negotiable instruments” in Section 4(b) cannot mean that all the forms of collateral enumerated in the exception must be negotiable. For example, “certificates of stock” were normally not negotiable instruments before the enactment of the Uniform Commercial Code in 1961. Ill. Rev.Stats.1973, ch. 26, § 8-105. But the relevant language of the Section 4(b) exception has been essentially unchanged since 1929. Also, the absence of a comma before the phrase relied upon ties it to “bonds.”

Because we hold the exception is applicable, we do not decide whether the district court properly held that the computation of interest on the basis of a 360-day year was here subject to the doctrine de minimis non curat lex and therefore not usurious. We do note that the Ninth Circuit recently held that interest computed on the basis of a 360-day year violated the Oregon usury law. American Timber & Trading Co. v. First National Bank of Oregon, 488 F.2d 469 (9th Cir. 1973). The issue, in a related context, of using a 360-day year in computing interest in Illinois is presently pending in the Circuit Court of Cook County. See Perlman v. First National Bank of Chicago, 15 Ill.App.3d 784, 305 N.E.2d 236 (1st Dist. 1973); see also Comment, “Legal Aspects of the Use of ‘Ordinary Simple Interest,’ ” 40 U.Chi.L.Rev. 141 (1973).

The district court also held that the action was not maintainable as a class action because the plaintiffs’ claims were “possibly excepted” from the usury provisions and were therefore “atypical” (358 F.Supp. 891). Rule 23(a)(3) of the Federal Rules of Civil Procedure requires that the claims of the named plaintiffs be “typical of the claims * * * of the class.” Where it is predictable that a major focus of the litigation will be on an arguable defense unique to the named plaintiff or a small subclass, then the named plaintiff is not a proper class representative. Cf. Muller v. Curtis Publishing Co., 57 F.R.D. 532 (E.D.Pa.1973), where a named plaintiff was held an improper representative because he was the only class member not subject to an arguable defense. Had this case proceeded as a class action, much of the Kooses’ effort would have necessarily been devoted to their own problems posed by the Section 4(b) defense; this may well have resulted in less attention to the issue which would be controlling for the rest of the class. A representative plaintiff should not be permitted to impose such a disadvantage on the class. Cf. Richardson v. Hamilton Int’l Corp., 62 F.R.D. 413 (E.D.Pa.1974). To the extent the holding in Mersay v. First Republic Corp., 43 F.R.D. 465 (S.D.N.Y.1968), is contrary, we disagree.

It seems prudent to indicate what this case does not hold. We are not concerned with defenses applicable to the class as a whole; there need be no preliminary showing that the class is likely to win before it can be determined whether a class action may be maintained. Nor are we concerned with Rule 23(a)(2) or 23(b)(3). We assume plaintiffs could have been a member of a class of all borrowers who paid 8% interest calculated on a 360-day basis, and could have intervened to litigate the Section 4(b) defense as a side issue for themselves or a subclass. But representative plaintiffs should not be distracted by a relatively unique personal defense. To the extent there are significant issues affecting only part of the class, the named representative should be in the larger part of the class.

For related reasons, plaintiffs have not satisfied the requirement of Rule 23(a) (1) that the class be “so numerous that joinder of all members is impracticable.” It follows from what has been said that plaintiffs could represent only a class of borrowers who pledged collateral arguably within the exception. Since there were no allegations in the complaint as to the size of such a class, the district court was within its discretion in determining that the action was not to be maintained on behalf of any such class.

In Perlman v. First National Bank of Chicago, supra, the Appellate Court of Illinois permitted the suit to proceed as a class action. But that suit was brought under Ill.Rev.Stats.1973, ch. 74 §§ 9, 10, governing the construction of contracts for the payment of interest. Those Sections apply to all loans without exception, so that the issue before us did not arise. In any event, the court there stated that the Illinois class action rule was not identical to Federal Rule 23. 15 Ill.App.3d 804, 305 N.E.2d 236. In the American Timber case, no class action issues were before the court of appeals. 488 F.2d 471, n. 2. Accordingly, nothing in those cases either supports or conflicts with the result reached here.

Judgment affirmed.

      . The complaint was filed on November 29, 1972, and complained of “usury” being charged in the last 7 months of 1970. Because of the two-year limitation period, plaintiffs can seemingly complain only of overcharges for two days in November and for all of December 1970. In the reply brief, the plaintiffs do not dispute that "the overcharge in November was only 35ji and in December only $5.18. They do assert their entitlement to twice the amount of interest paid in those months, and they hint that interest for other months may have been paid late and within the period of limitations. They also suggested at oral argument that the statute of limitations was tolled by the bank’s fraudulent concealment. None of these limitations issues is before us for decision.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ELIAS BROTHERS RESTAURANTS, INC., Respondent.
    No. 73-1943.
    United States Court of Appeals, Sixth Circuit.
    Argued April 2, 1974.
    Decided May 29, 1974.

      Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, William Waehter, Elinor Hadley Still-man, Attys., National Labor Relations Board Washington, D. C., on brief, for petitioner.
    John Katsoulos, Huntington Woods, Mich., on brief, for respondent.
    Before CELEBREZZE, LIVELY and ENGEL, Circuit Judges.
   PER CURIAM.

The National Labor Relations Board has petitioned for enforcement of its order issued against respondent, reported at 204 NLRB No. 113.

The Board found that respondent violated Section 8(a)(1) of the Act, 29 U. S.C. § 158(a)(1), by discharging its employee Patricia Clark for exercising rights guaranteed to her by Section 7 of the Act, 29 U.S.C. § 157. The employee Clark was a waitress at an independently owned restaurant which was franchised by respondent. She was discharged on August 17, 1972 near the end of her work shift. The evidence shows that the air conditioning in the restaurant where Miss Clark worked had been off a number of times during the summer of 1972 and that she and other employees had complained to the manager. On the morning of August 17 the restaurant was hot and the floor in the area where the waitresses picked up orders was wet. Miss Clark and several of the other employees complained and the manager told them that she was hot too and that nothing could be done about it.

A meeting of all the employees had previously been scheduled for 4:00 p. m. on August 17, and Miss Clark requested the manager to have the owner present so that the complaints of the employees could be considered. The manager refused to call the owner, but dialed his number and permitted Miss Clark to talk with him. He responded to the request by stating that the manager was in charge and that he did not plan to deal with the complaints personally, though he finally agreed to come to the restaurant. The ■ franchised restaurant where Miss Clark worked was non-union and there was no established procedure for handling employee complaints. Throughout the morning the employees, with Miss Clark acting as spokesman, continued to complain about the heat, wet floor and a shortage of spoons. Miss Clark suggested within the hearing of the manager that all waitresses walk out as a means of getting relief from the bad working conditions. The record does not disclose that any employee agreed to join Miss Clark in a walkout. The manager informed the owner that Miss Clark was attempting to get the girls to walk out. It was testified by the manager that Miss Clark was discharged because she had kept everyone upset and that the restaurant could not operate properly because of the disturbance which Miss Clark created.

Following her discharge, Miss Clark applied for work as a waitress at one of respondent’s company-owned restaurants. The manager knew Miss Clark from having worked with her previously and agreed to hire her, beginning September 4. Though there was a dispute as to whether Miss Clark told the manager that she had .been discharged or that she had quit, the administrative law judge credited the testimony of Miss Clark. When officials of respondent learned of Miss Clark’s discharge by the franchised restaurant, they instructed the manager who had agreed to hire her on September 4 not to put her to work. When Miss Clark reported for work on that date she was told she could not be hired.

The respondent does not contest the fact that Miss Clark was entitled to the protection of the Act as an applicant for a job at the company-owned restaurant. Thus it would be an unfair labor act to refuse to put her to work there because of her discharge by the franchised restaurant if that discharge violated her Section 7 rights. The activities in which Miss Clark was engaged on August 17, consisting of protests over working conditions and efforts to persuade other employees to join a walkout in order to bring the seriousness of their complaints to the attention of the owner, were protected concerted activities. N. L. R. B. v. Washington Aluminum Co., 370 U.S. 9, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962); N. L. R. B. v. Evans Packing Co., 463 F.2d 193 (6th Cir. 1972); N. L. R. B. v. KDI Precision Products Co., 436 F.2d 385 (6th Cir. 1971) . The evidence shows that a running dispute which occurred over a period of several weeks culminated in the activities of August 17. The nature of the controversy, and its protected status, ■ were not altered by the fact that respondent was making efforts to have the air conditioning repaired. N. L. R. B. v. Washington Aluminum Co., supra, at 16.

The factual issue determined by the Board was respondent’s motivation in discharging Miss Clark and the general counsel had the burden of proof. N. L. R. B. v. Howell Automatic Machine Co., 454 F.2d 1077, 1080 (6th Cir. 1972) . While there was positive evidence by respondent that the discharge was for reasons other than Miss Clark’s attempts to organize a walkout at the franchised restaurant, there was also proof that this was at least partially the reason underlying the decision not to hire her. It is not necessary that a prohibited reason be the sole one. If the discharge is motivated in part by activities protected by the National Labor Relations Act it is a violation of Section 8(a)(1). Considering the record as a whole, we conclude that the Board correctly determined that there was substantial evidence to support the finding that Miss Clark was unlawfully penalized for exercising rights guaranteed to her by Section 7 of the Act.

Enforcement of the Board’s order is granted.


author: RONEY, Circuit Judge:

text:
    Acela GARROTE, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    No. 73-2994.
    United States Court of Appeals, Fifth Circuit.
    July 5, 1974.
    Edward A. Perse, Alan R. Schwartz, Arnold R. Ginsberg, Miami, Fla., for plaintiff-appellant.
    Edward L. Magill, John P. Wiederhold, Miami, Fla., for defendant-appellee.
    Before BROWN, Chief Judge, and GODBOLD and RONEY, Circuit Judges.
   RONEY, Circuit Judge:

Relying on a single Florida case, Mrs. Acela Garrote asserts that contrary to the decision of the District Court, her automobile liability insurance policy should cover an accident she had while driving an automobile which was acquired after the policy was issued.

The crucial decision in the case is whether the language of the policy requiring notice to the company within 30 days of the acquisition of a new automobile is ambiguous and must be construed against the company under the holding of Beasley v. Wolf, 151 So.2d 679 (Fla.Dist.Ct.App.1963). Deciding that the District Court correctly held the language of the policy to be clear and unambiguous, we affirm the holding that failure to give the 30-day notice required by the policy rendered Mrs. Garrote’s after-acquired automobile uninsured.

While driving a 1963 Ford Falcon, Acela Garrote was involved in an automobile accident injuring her passenger, Mrs. Gaetan. Garrote’s insuror, Liberty Mutual, the appellee, denied coverage on the ground that the Falcon was not listed in the policy declarations and Garrote had not complied with the policy condition that after-acquired vehicles be reported to the company within 30 days of acquisition. A $48,000 Florida state court judgment against Garrote in favor of her passenger, Mrs. Gaetan, precipitated this suit against Liberty Mutual by Garrote. The District Court held that Garrote’s Falcon was not covered by the Liberty Mutual policy since she had not complied with the unambiguous terms of the insurance policy requiring notification of after-acquired vehicles.

Garrote relies on Beasley v. Wolf, 151 So.2d 679 (Fla.Dist.Ct.App.1963) for reversal. In that case, Wolf attempted to recover the amount of a judgment entered against him due to his son’s negligent operation of a 1956 Ford from the Keystone Insurance Company with whom he had a “family policy.” His son’s Ford was acquired after the effective date of the policy and its acquisition was not reported within 30 days. The Florida District Court of Appeal held, however, that Wolf’s failure to notify Keystone did not eliminate liability because the 30-day notice requirement was ambiguous and, construing the ambiguity against the company, no 30-day notice was required as a condition of coverage.

As to the failure of Rudolph Wolf to comply with that condition of the policy requiring the named insured to inform the company within thirty days of acquiring an additional automobile, we hold that under the facts of this case such failure does not eliminate liability for an accident involving a ear owned by the named insured but not listed on the face of the policy. It is to be noted that this condition is titled “Premium” and the sentence following the thirty-day notice requirement has to do with necessary premium adjustment. Thus, at the very least, it is a requirement which has an ambiguous function; and under the rule stated before, such ambiguity must be resolved in favor of the insured.

151 So.2d at 681.

A comparison of the Beasley policy with the Garrote policy reveals a substantial difference which distinguishes the Beasley holding from the case at bar. The notice provision in Beasley was under the premium section of the policy, but in the case at bar it is under the described automobile section. We think this crucial difference makes the Florida court’s finding of ambiguity as to the requirement of notice for cover-' age in Beasley not inconsistent with our District Court’s finding of no ambiguity in this ease.

Although the premium provision of the Beasley policy was not quoted in the state court opinion, we requested copies of the state record and found that the policy provided as follows:

2. Premium ... If the named Insured acquires ownership of an additional private passenger, farm or utility automobile . . ., he shall inform the Company within thirty days following the date of its delivery. Any premium adjustment necessary shall be made as of the date of such change or acquisition in accordance with the manuals in use by the Company.

The Florida court felt the 30-day notice could well apply only to premium adjustment and was not clearly a condition to coverage.

In the Garrote policy, however, there is a clear provision as to newly acquired automobiles under the section defining what vehicles will be covered, as follows:

IY. Automobile Defined, Trailers, Private Passenger Automobile, Two or More Automobiles, Including Automatic Insurance
(a) Automobile. Except with respect to division 2 of coverage C and except where stated to the contrary, the word “automobile” means:
(1) Described Automobile — the motor vehicle or trailer described in this policy; . . .
(4) Newly Acquired Automobile — an automobile, ownership of which is acquired by the named insured or his spouse if a resident of the same household, if (i) it replaces an automobile owned by either and covered by this policy, or the company insures all automobiles owned by the named insured and such spouse on the date of its delivery, and (ii) the named insured or such spouse notifies the company within thirty days following such delivery date; . . . The named insured shall pay any additional premium required because of the application of the insurance to such newly acquired automobile.

Since the notification requirement in Beasley could either apply to necessary premium adjustments or as a prerequisite for proper coverage, the court resolved the ambiguity in favor of the insured. In Garrote’s policy, however, the notification requirement is listed under the “Automobile” definitional section and lends itself to no such ambiguous construction. We are unpersuaded by Garrote’s argument that the definitional provision is rendered ambiguous by its closing phrase which requires the insured to pay any additional premiums flowing from the acquisition of the newly acquired automobile.

We might note that we agree with appellants that this case is not controlled by two cases cited by appellees, which hold for the insurance company, Coleman v. Atlantic National Ins. Co., 166 So.2d 620 (Fla.Dist.Ct.App.1964), and Pennsylvania Threshermen and Farmers Mutual Casualty Ins. Co. v. Traister, 173 So.2d 153 (Fla.Dist.Ct.App.1965). In Coleman the insurance policy was renewed subsequent to the acquisition of the nonlisted, after-acquired vehicle and such vehicle was not added in the renewal. The court held that “when an insured received a policy which describes but one of his automobiles [then owned by him] the liability under said policy is limited to the vehicle described therein.” 166 So.2d at 622. The facts established an intention not to cover the owned automobile not mentioned in the renewal. Under the facts closely analogous to Coleman, the Florida court in Traister disallowed .coverage of a nonlisted vehicle which was involved in an accident after the insurance policy had been modified and renewed, but which automobile had been acquired prior to the renewal. The Traister court relied -on Coleman and distinguished Beasley. We agree that Coleman and Traister are clearly distinguishable from Beasley and the case at bar. Garrote’s insurance policy had not been renewed after the acquisition of the Falcon but prior'to the time of the accident.

The Garrote policy is clear on its face, however. For an after-acquired vehicle to be covered by the insurance policy, the insured must notify the insuror within 30 days of the vehicle’s acquisition. This Garrote failed to do. The District Court did not err in denying coverage.

Affirmed.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Wayne Gilbert MARVEL, Defendant-Appellant.
    No. 73-3293.
    United States Court of Appeals, Fifth Circuit.
    July 5, 1974.

      Les L. McIntyre, Mobile, Ala. (Court-appointed), for defendant-appellant.
    Charles S. White-Spunner, U. S. Atty., Irwin 'W. Coleman, Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.
    ON PETITION FOR REHEARING
    (Opinion April 26, 1974, 5 Cir., 1974, 493 F.2d 15).
    Before COLEMAN, DYER and RONEY, Circuit Judges.
   PER CURIAM:

It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied.

We are not convinced that the objection at trial on the Court’s instructions vis-a-vis “concealing” properly addressed the contention made on appeal so that the plain error standard of review would be inappropriate. Nevertheless, we have reviewed the record, assuming the point was properly presented for review, and find that the error being asserted on appeal, if error at all, was harmless.

The jury showed no confusion as to the meaning of the word “conceal.” The Court properly instructed that if the jury found defendant had received the motor vehicle, it would not be necessary to find that he had concealed it, in order to be in violation of 18 U.S.C.A. § 2313.

The jury had indicated in the request for additional instructions that it felt the defendant did receive the automobile but it had no evidence that he concealed it. In view of this, we detect no harm to defendant in failure to define for the jury the meaning of “conceal.”


text:
    Velma HIBBLER, Plaintiff-Appellant, v. MILLER’S OF BIRMINGHAM BANKHEAD HIGHWAY, INC., Defendant-Appellee.
    No. 74-1320
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 1, 1974.
    Rehearing Denied Aug. 2, 1974.

      David H. Coar, Birmingham, Ala., for plaintiff-appellant.
    J. Roy Weathersby, Atlanta, Ga., James L. North, Birmingham, Ala., for defendant-appellee.
    Before COLEMAN, DYER and RONEY, Circuit Judges.

      Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. 5 Cir., 1970, 431 E.2d 409. Citizens Casualty Company of New York et al.,

   PER CURIAM.

This litigation began as a class action suit praying for declaratory and injunctive relief as to alleged racial employment practices on the part of Miller’s Department Store, the defendant-appellee.

The defendant moved to dismiss the complaint for failure to join as an indispensable party the Retail, Wholesale, and Department Store Union, AFL-CIO, with whom the Store had a collective bargaining agreement. Although the complaint contained no averments against the Union, the motion was granted. Thirty days were allowed for the filing of an amended complaint. The amended complaint was likewise dismissed for failure to join the Union as previously ordered by the Court. The record, however, is bereft of any indication that the second dismissal was entered as a sanction for failure to comply with the prior order.

In the absence of such an indication, and considering that the complaint prayed for no relief against the Union, we are of the opinion that neither the first nor the second orders of dismissal should have been entered.

Accordingly, we reverse the judgment of the District Court and remand the case for further proceedings.

Reversed and remanded.


text:
    Evan Arthur HOOK, Petitioner-Appellant, v. STATE OF ARIZONA, Respondent-Appellee.
    No. 73-1695.
    United States Court of Appeals, Ninth Circuit.
    May 15, 1974.

      B. Michael Dann, (argued), Phoenix, Ariz., for petitioner-appellant.
    Shirley H. Frondorf, Asst. Atty. Gen., (argued), Bud Moore, Asst. Atty. Gen., Gary K. Nelson, Atty. Gen., Phoenix, Ariz., for respondent-appellee.
    Before BROWNING and WRIGHT, Circuit Judges, and KING, District Judge.

       Honorable Samuel P. King, United States District Judge, District of Hawaii, sitting by designation.

   OPINION

PER CURIAM:

Appellant Evan Arthur Hook, an Arizona prisoner, filed a petition for habeas corpus alleging he had not been allowed credit on his prison sentence for 236 days of presentence confinement. He asserted that since his prison sentence was for the maximum term allowed by the applicable Arizona statute depriving him of this credit denied him equal protection of the law. He asked that the state be required to deduct the presentence time served from his sentence. Appellant also asserted that the district attorney “inferred and implied” that he would get credit for time served if he pleaded guilty, and that this “acted as further inducement for petitioner to enter a plea of guilty.” The district court held “there is no federal constitutional right to credit for time served prior to sentence,” and denied the writ. The court did not discuss the allegation that an unkept promise had induced appellant’s guilty plea.

The court granted appellant a certificate of probable cause, and he appealed.

Under Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), a prisoner may not be confined for more than the maximum period of imprisonment provided by statute for a given offense because he fails to pay a fine by reason of indigency. The Williams rule also requires that time a defendant spends in jail before sentence because he is unable to raise bond must be credited if he is later sentenced to a maximum term. “[T]he inability of an indigent criminal defendant to make bond should not result in extending the duration of his imprisonment beyond the statutory maximum.” Hart v. Henderson, 449 F.2d 183, 185 (5th Cir. 1971). See also Hill v. Wainwright, 465 F.2d 414 (5th Cir. 1972).

The Arizona court sentenced appellant to 9-to-10 years on each of two counts of forgery with a credit card, A. R.S. §§ 13-1074, 13-1649, and 13-1650, the sentences to run concurrently. The maximum imprisonment authorized by the statute was ten years on each count. The district court believed appellant had not been sentenced to the maximum because the • sentences were to be served concurrently rather than consecutively. But we held in Lee v. United States, 400 F.2d 185, 188 (9th Cir. 1968), that “each conviction is separate if the statutory maximum term is imposed, the order that the sentences run concurrently does not vitiate the contention that defendant received the maximum prison sentence.” Lee involved a federal sentence, but there is no reason to apply a different rule to state sentences. Lee rests on the premise that “it is not easy to infer an intent to give credit for a few days or weeks of presentence custody from a failure to confine a defendant for an additional five years by ordering the sentences to run consecutively.” 400 F.2d at 188. The inference is equally unjustifiable whether the sentencing judge sits in a state court or a federal one.

Nor does the fact that appellant was given a minimum term of nine years alter the fact that he was sentenced to the maximum term of ten. Whatever the minimum term Hook could serve, he was potentially liable to serve the statutory maximum. The fact that he might be paroled at an earlier point in time is irrelevant. He retains the right not to have that statutory maximum extended by reason of indigency. Appellant is therefore entitled to time served for any period of presentence confinement suffered due to indigency.

This may not dispose of the plea-bargaining issue. On remand the district court may determine that some of the 236 days of presentence confinement was not served because of an offense for which appellant was sentenced to a maximum term, or was not served because of appellant’s indigency. As we read appellant’s allegations, he charges that he was induced to plead guilty by an understanding that all of the time he had served, for whatever reason, would be credited to his sentence.

It is not clear, however, whether appellant has alleged an actionable bargain, or merely an unreasonable and mistaken subjective impression on his part. Compare United States ex rel. Curtis v. Zelker, 466 F.2d 1092, 1098-1101 (2d Cir. 1972), with Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Appellant should be permitted to amend his vague and conclusory allegations (Hitchcock v. Eyman, 418 F.2d 1245 (9th Cir. 1969), 28 U.S.C. § 2242, cf. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)) if he wishes to do so in light of the determination on remand as to the amount of presentence time to be credited to his sentence.

We add this caveat: Assuming adquate allegations of an unkept promise by the prosecutor are tendered and established by proof on remand, it is not clear that appellant would be entitled to specific performance of the promise as distinguished from a right to withdraw his guilty plea, unless it also appeared that the judge participated in the agreement.

Reversed and remanded for further proceedings.


text:
    Jeanell Hollie LALONDE, Plaintiff-Appellant, v. ASSOCIATED PIPELINE CONTRACTORS, INC., et al., Defendants-Appellees.
    No. 74-1431
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 11, 1974.
    Felix A. DeJean, III, Patrick C. Morrow, Opelousas, La., for plaintiff-appellant.
    Harry S. H. Verlander, Jr., New Orleans, La., for Assoc. Pipeline Contractors.

      Henry L. Klein, New Orleans, La., for Bonnie F. Hollie.
    Hugh C. Uhalt, New Orleans, La., for def endants-appellees.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

      Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Appellant challenges the District Court’s summary judgment denying Louisiana workmen’s compensation benefits to her four minor children as a matter of state law. We affirm the District Court’s summary judgment in favor of Appellee on the issue of Appellant’s right to recover benefits as a matter of state law, however, we vacate and remand for reconsideration and further development of the record on the question of whether the law as authoritatively construed by the Courts of Louisiana constitutes a denial of equal protection of the laws under the Fourteenth Amendment.

Appellant’s former husband and the father of her four children was killed in an automobile accident allegedly within the scope of his employment with Associated Pipeline. The employer is covered by a workman’s compensation insurance program with Employers Commercial Union Insurance Company.

On affidavits and the pre-trial conference the District Court found that under the divorce decree the deceased had been ordered to pay child support to the minor children but that the children had not lived with the deceased for more than four years and had not received any contributions toward support for over two years prior to the date of death.

As the District Court pointed out, in order to be eligible for workmen’s compensation benefits under Louisiana law a child must qualify as an “actual dependent.” La.Rev.Stat. 23:1251-23:1254. A child under the age of 18 is conclusively presumed to be actually dependent if living with the parent at the time of death. If not living with the parent at the time of death dependency is a question of fact. La.Rev.Stat. 23:1252. Where actual dependency cannot be presumed, Louisiana precedent requires a showing that the deceased was actually contributing to the support of the child at the time of death; a legal or moral obligation to contribute is insufficient. Haynes v. Loffland Bros. Co., 1949, 215 La. 280, 40 So.2d 243; Griffitts v. Tiger Well Service, Inc., 1969, La.App. 3 Cir., 226 So.2d 175, cert. denied, 254 La. 852, 227 So.2d 594. The law may seem harsh but it is" clear. The District Court correctly concluded that the minor children were ineligible for relief.

In response to the motion for summary judgment, Appellant filed a memo conceding that the law of Louisiana seemed to preclude relief but arguing that the State’s policy of permitting a child who was actually receiving support from the decedent to recover workmen’s compensation benefits while denying such recovery to a child who was merely morally and legally entitled to receive such support violated the equal protection clause of the Fourteenth Amendment. In granting Appellee’s motion for summary judgment, the District Court relied entirely on the preclusive effect of state law and did not address the constitutional issue.

Since the constitutional challenge was in fact raised before the District Court and since it would fairly appear that it constitutes Appellant’s only really color-able claim for relief, we must remand for further factual and legal development of the record on that issue. The District Court should consider inviting the State to intervene in order to present whatever legitimate justifications may be raised in defense of the challenged distinction.

Affirmed in part, vacated and remanded in part.

      . Bonnie Hollie tlie deceased’s wife at the time of death was the original plaintiff in the litigation below and has filed a brief as Appellee in support of summary judgment against Appellant.

      . We note that it is clear from the record, especially from the District Court’s F.R. Civ.P. 54(b) certification that it intended to grant a complete and final judgment as to all of Appellant’s claims thus this is not a case of partial summary judgment in which the constitutional issue has been reserved for a later point in the proceedings.


text:
    Joseph Felice BURGE, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 74-1134.
    United States Court of Appeals, Fifth Circuit.
    July 5, 1974.
    Linda N. Coffee, Dallas, Tex., for petitioner-appellant.
    Dunklin Sullivan, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before GOLDBERG, GODBOLD and MORGAN, Circuit Judges.
   PER CURIAM:

Appellant was convicted in Texas state court of burglary with intent to rape. After exhausting state remedies he -sought federal habeas corpus which was denied without evidentiary hearing and he appeals therefrom. We affirm.

At a time when appellant was in jail police officers from Texas went to Tulsa, Oklahoma, where, with local officers and without a search warrant, they entered and searched the residence of appellant and found strongly incriminating evidence that was introduced at appellant’s trial. The trial court conducted a motion to suppress hearing at which one of the Texas officers testified that appellant’s wife consented to the search, accompanied them to the residence of which she too was an occupant, and assisted in the search. After the search began, with the wife assisting, she asked if she could call an attorney, she used the telephone, and then resumed her assistance. No evidence was offered by the defense at the suppression hearing tending to show that the wife did not consent or that her consent was not voluntary.

We have examined the record of the motion hearing and we think the testimony adequately supported a finding of voluntary consent by the wife. We, therefore, reject the claim of appellant that the federal habeas court was required to conduct an evidentiary hearing at which appellant would have the opportunity to offer the testimony of his [former] wife.

The wife’s consent validated the search under usual federal standards. However, appellant represents that under Oklahoma state law as of the time of the search, a warrantless search was not validated by a spouse’s consent. Under Texas standards consent of a spouse suffices. Appellant urges that if local rules of the place where a search occurred render the search not valid it is perforce unreasonable in the federal constitutional sense. See Traynor, Mapp v. Ohio at Large in the Fifty States, Duke L.J. 319, 328 (1962):

It is reasonable to assume that there will be appropriate local rules even though they may not be symmetric with the federal ones . . . local rules can serve well as an immediate deterrent to lawless action. They will have constitutional sanction, for whatever action is illegal is perforce unreasonable.

The argument that what is “illegal” necessarily must be “unreasonable,” has surface appeal but unduly emphasizes semantics. And, in any event, the matter is not solved quite so easily. Texas as the forum state may choose its own standards for determining the admissibility of evidence so long as minimum federal constitutional standards are honored. In determining the admissibility in federal court of the products of state search and seizure the controlling law is federal, United States v. Melancon, 462 F.2d 82 (CA5), cert. denied, 409 U.S. 1038, 93 S.Ct. 516, 34 L.Ed.2d 487 (1972); United States v. Alberty, 448 F.2d 706 (CA10, 1971). In that context we have implicitly not accepted the concept expressed by Justice Traynor that more stringent state standards apply. In the instant case the evidence was introduced in a state case. The federal standard is relevant because it measures the outer limits of what Texas constitutionally may do. But in both situations —where rules of the forum state are sought to be imported into the federal law as applied in the federal courts in that state (Melancon and Alberty), and where rules of a non-forum state are sought to be imported into the federal law as applied in federal courts which are passing on the constitutionality of state court judgments of the forum state —the concern is the same, that is, “what are the outer limits of permissible conduct as measured by the federal constitution?” We note also that the issue comes up in this case in a habeas context, where the power of the federal court arises from alleged impingement upon the national constitution.

A more strict local rule may serve as a deterrent to lawless action. But it does not follow that Oklahoma’s choice of a deterrent must be imposed upon the State of Texas to trigger application of the exclusionary rule via a nexus of federal constitutional law.

The law of search and seizure already is confusing and generally unsatisfactory. See Coolidge v. New Hampshire, 403 U.S. 443, 490, 91 S.Ct. 2022, 2050, 29 L.Ed.2d 564, 597 (1971) (Harlan, J., concurring). It would be a disservice to add to it a concept that, even in the limited area of the law represented by this case, creates a nonuniform federal standard.

The contention that the wife’s consent, even if voluntary, could not extend to a search of his effects not in plain view, is answered by United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

Affirmed.

      . Citing Simmons v. State, 94 Okl.Cr. 18, 229 P.2d 615.


text:
    A. W. and Williamena LEGG, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 72-2233.
    United States Court of Appeals, Ninth Circuit.
    May 15, 1974.
    William C. Ruthford (argued), Jones, Grey, Bayley & Olsen, Seattle, Wash., for petitioners-appellants.
    David English Carmack (argued), Scott P. Crampton, Asst. Atty. Gen., Tax Div., U. S. Dept, of Justice, Washington, D. C., Lee H. Henkel, Jr., Acting Chief Counsel, IRS, Washington, D. C., Richard J. Shipley, Seattle, Wash., for respondent-appellee.
    Before KOELSCH and WALLACE, Circuit Judges, and SKOPIL, District Judge.

       The Honorable Otto R. Skopil, United States District Judge for the District of Oregon, sitting by designation.

   OPINION

PER CURIAM:

The Tax Court, concluding that taxpayers’ transfer of their vendors’ interest in an installment contract to an irrevocable trust constituted a disposition within the purview of 26 U.S.C. § 453(d) and thus subjected the gain to immediate recognition, affirmed the Commissioner’s determination of deficiencies in their income tax. 57 T.C. 164.

A review of the record discloses that all factual determinations are supported by the evidence, that the relevant statutory provisions were properly construed and applied, and that the rationale of the Tax Court was correct and ought to be approved.

Affirmed.


text:
    ALLIED DEVELOPMENT CORPORATION et al., Plaintiffs-Appellants, v. The FIRST NATIONAL BANK & TRUST COMPANY OF STEUBENVILLE, Defendant-Appellee.
    No. 73-1958.
    United Stages Court of Appeals, Sixth Circuit.
    Argued April 2, 1974.
    Decided May 2, 1974.
    Lyman Brownfield, Brownfield, Kosydar, Bowen, Bally & Sturtz, Columbus, Ohio, for plaintiffs-appellants.
    Bernard Fineman, East Liverpool, Ohio, for defendant-appellee; Aronson & Fineman, East Liverpool, Ohio, Dominic J. Bianco, Coleman & Bianco, Steubenville, Ohio, on brief.
    Before CELEBREZZE, LIVELY and ENGEL, Circuit Judges.
   PER CURIAM.

Appellants filed a complaint in the District Court for the Southern District of Ohio, alleging that Appellee had violated Rule 10b-5 of the Securities and Exchange Commission, promulgated under Section 10(b) of the Securities Exchange Act of 1934, in connection with the sale of a promissory note to Appellants. Although Appellants generally alleged that the sales had been accomplished “through the use of the United States mails and instrumentalities of commerce,” the only specific allegation of a use of the mails was that Appellants had mailed the note among themselves for signature before returning it to Appellee. The District Court determined, without a hearing, that the facts so pleaded did not establish subject matter jurisdiction under Rule 10b-5, and it dismissed the complaint.

On appeal, Appellants moved this Court to dismiss the appeal on the condition that they be allowed to amend their complaint to state that the mails were also used in returning the note to Appellee. At oral hearing Appellants withdrew their motion.

Section 10(b) of the 1934 Securities Exchange Act states:

“It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, . to use or employ, in connection with the purchase or sale of any security . . . any manipulative or deceptive device. . . . ” 15 U. S.C. § 78j(b).

Considering the complaint which was before the District Court, we hold that Appellants failed to establish that the use of the mails among themselves sufficed to give the federal courts jurisdiction over a matter which was otherwise purely an intrastate dispute, to be governed by state law. Accordingly, the judgment of the District Court is affirmed.


text:
    Birdie Mae DAVIS et al., Plaintiffs-Appellants, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY et al., Defendants-Appellees.
    No. 72-3118.
    United States Court of Appeals, Fifth Circuit.
    June 21, 1974.
    J. U. Blacksher, A. J. Cooper, Jr., Mobile, Ala., Charles Stephen Ralston, New York City, for plaintiffs-appellants.
    A. L. Philips, Jr., James D. Brooks, Victor T. Hudson, Mobile, Ala., for defendants-appellees.
    Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
   PER CURIAM:

This is an appeal from the denial of fees to counsel for plaintiffs in the litigation to desegregate the Mobile School system. We vacate and remand for reconsideration in light of the supervening decision of the Supreme Court in Bradley v. School Board of Richmond,-U. S. -, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974).

Vacated and remanded with direction.


author: ALFRED T. GOODWIN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Angel MORA-CHAVEZ, Appellant.
    No. 73-3444.
    United States Court of Appeals, Ninth Circuit.
    April 26, 1974.

      Warren R. Williamson (argued), Charles M. Sevilla, Federal Defenders Inc., San Diego, Cal., for appellant.
    James Meyers, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee.
    Before DUNIWAY and GOODWIN, Circuit Judges, and BURNS, District Judge.

       The Honorable James M. Burns, United States District Judge for the District of Oregon, sitting by designation.

   ALFRED T. GOODWIN, Circuit Judge:

The district court refused to suppress 634 pounds of marijuana found in an automobile stopped by border-patrol officers 660 feet from the Mexican border. We affirm the resulting conviction for violating 21 U.S.C. 841(a) (1).

The officers were alerted by electronic sensors which detect human foot traffic across the border. The automobile was one of two which the officers stopped at about six o’clock on a Sunday morning, when they appeared in the vicinity of freshly detected border traffic. Each of the automobiles was occupied by a solitary male. The two appeared to be traveling in tandem.

The practice of illegal aliens to walk across the border and of smugglers to “back-pack” contraband over the border in remote desert areas between border checkpoints is well known. See United States v. Patterson, 492 F.2d 995 (9th Cir. 1974). The prompt inspection of the first automobile to appear on the highway after the officers received the sensor alarm was not only well-advised, but was based upon a founded suspicion. The officers knew that some person or persons had recently crossed the border illegally and that the two automobiles which were stopped were the only ones known to have been in the sensor-surveillance area near the time of the sensor alert.

The use of the electronic sensor devices is relatively new along the international border. The border patrol does not have enough officers to maintain constant line watch at all times and along all the remote crossing areas. The electronic devices were developed for the military detection of night patrols and infiltrators. The devices are engineered to ignore small animals, but to record an alarm when metal or an animal weighing more than 40 pounds passes nearby. These alarms are recorded in a central station and forwarded by radio to vehicular patrols supplementing the line watch. The trial court was able to find from the government’s explanation of the sensor technique adequate foundation for a decision to stop the automobiles in this case. After the automobiles were stopped, the first driver revealed that he was an illegal alien. He was arrested. The ensuing search incidental to the arrest produced the evidence. There was no error.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Thomas James HAND, III, Defendant-Appellant.
    No. 73-3395.
    United States Court of Appeals, Fifth Circuit.
    June 27, 1974.
    Rehearing Denied Aug. 2, 1974.
    Oliver J. Latour, Jr., James W. Tarlton, III, Mobile, Ala., for defendant-appellant.
    Charles White-Spunner, U. S. Atty., Irwin W. Coleman, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.
    Before BELL, SIMPSON and IN-GRAHAM, Circuit Judges.
   PER CURIAM:

Appellant, Thomas James Hand, III, was convicted by a jury of violating 18 U.S.C. § 1343. We affirm.

In United States v. Hand, 472 F.2d 162, 163 (5th Cir., 1973), this court remanded a similar conviction to determine whether it had been obtained by a trial in which an unqualified juror had participated. After conducting the necessary factual hearing, the lower court decided that an unqualified juror had participated in the earlier trial. The district court apparently dismissed the indictment on which that conviction was based because Hand was subsequently reindicted in three counts for violations of § 1343. Count One of the present (new) indictment contained the same allegations on which Hand had been acquitted in his first trial. This count was dismissed prior to the beginning of the trial presently on appeal. Count Two of the present indictment is the same as Count Two of the first indictment, the count on which Hand’s first conviction was founded. Hand has thus been found guilty by two different juries under this count. Finally, Count Three of the present indictment contained allegations not covered in the previous trial, but the jury acquitted Hand under this count.

We have examined the record made in the present trial and conclude that the evidence is sufficient to sustain the conviction. The trial court carefully and thoroughly instructed the jury concerning the elements of the crime and viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1964), the jury had an adequate evidentiary foundation on which to base its verdict.

Finding appellant’s remaining contentions without merit, we affirm the judgment.

      . “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both.”

      . We stated:
      “[W]e remand to the District Court so that an appropriate factual inquiry will be made as to whether the juror at the time he sat was able to read, write and understand the English language as required by 28 U.S. C.A. § 1861(a).
      “If the trial court finds in the affirmative, the conviction stands affirmed. If the trial court finds in the negative, then in the exercise of our supervisory power, see Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34, 54, 55, 60 (en lane) we direct that the conviction be reversed for a new trial.”


text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Ronald HUFSTETLER, Defendant-Appellant.
    No. 73-2927
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 3, 1974.
    Joseph Abraham, Jr., Anthony C. Aguilar, El Paso, Tex., for defendant-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ronald F. Ederer, Asst. U. S. Atty., El Paso, Tex., for plaintiffappellee.
    Before COLEMAN, DYER and RONEY, Circuit Judges.

       Rule 18, 5 Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

This marijuana apprehension occurred at a permanent border patrol checkpoint situated on Interstate Highway 10, approximately three miles west of Sierra Blanca, Texas. The apprehension occurred on March 16, 1973. On June 21, 1973, the Supreme Court decided Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596. Almeida-Sanchez is to be given only prospective application, U. S. v. Miller, 5 Cir., 1974, 492 F.2d 37.

We find the facts and circumstances of this appeal, in which the District Court declined to suppress the evidence, to fall clearly within our decision in U. S. v. Merla, 5 Cir., 1974, 493 F.2d 910. In that case, the denial of a motion to suppress was affirmed. The same result necessarily follows here.

Affirmed.

      . Sierra Blanca is approximately fifteen miles north of the Mexican border and about seventy-five miles southeast of El Paso. There is no road directly connecting Sierra Blanca with the Mexican boundary, but this was a permanent checkpoint.

      . Appellant filed a motion to strike certain portions of the government’s brief, correctly asserting that it contained statements of fact not presented or heard in the court below when considering the motion to suppress. The objectionable material played no part in our decision of this case.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Julian Eugene KENNEDY, Defendant-Appellant.
    No. 73-3532
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 5, 1974.
    James W. Hall, Valdosta, Ga. (Court-appointed), for defendant-appellant.
    William J. Schloth, U. S. Atty., C. Nathan Davis, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

       Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Appellant Kennedy seeks review of his kidnapping conviction in violation of 18 U.S.C. § 1201. He challenges both the admissibility of his two confessions and the sufficiency of the evidence to establish the corpus delicti of the crime. His first confession was made to state officers and admitted at his Florida murder trial; the second, rendered after that trial, was made to an FBI agent. Finding that both of his challenges are without merit, we affirm.

On October 4, 1972 Julian Eugene Kennedy, an escaped prisoner from Raiford, Florida, was arrested by Detective Marchetta of the Hillsborough County Sheriff’s Department, Tampa, Florida and placed in the county’s detention facility. For approximately two months Kennedy remained in the Hillsborough County jail during which time he says he requested that the public defender’s office be notified that he needed counsel. On December 11, 1972 the defendant wrote a note that said “[Tjell Detective Marchetta that I am ready to talk * * *”. Kennedy was then brought to an interview room where Marchetta read him the Miranda warnings from the wallet card he carried. After suggesting to the Detective that they exchange drugs for a statement- — -a bargain that was declined — Kennedy asked that two facts be verified: (1) that the police department in Valdosta, Georgia had records of a woman reported missing on September 11, 1972, and (2) that the woman’s car had been found abandoned in Pasco County, Florida. Detective Marchetta found that Elva Lee Jones had disappeared from Valdosta, Georgia on September 11, 1972 and that her car had been recovered in Pasco County the following day.

After acquiring this information, the sheriff returned and read to Kennedy his constitutional rights, encompassed this time in the standard eonsent-to-interview form used by the sheriff’s department. Kennedy then signed the waiver. In his statement he described how he escaped from the prisoner reception center in Lake Butler, Florida and stole or attempted to steal a succession of vehicles as he made his way north to Georgia. It was in the process of acquiring another car that he found a woman alone in a cemetery and compelled her to accompany him in her car back to Florida. Kennedy stopped the car on a dirt road in Pasco County and when he told the woman that he would have to put her in the trunk, she struggled and he killed her. Then, after hiding her body, he abandoned the car.

On the basis of this statement Kennedy was tried and convicted of murder in the Florida state courts. In August of 1973, while in prison in Florida, he consented to an interview with an FBI agent, signed a waiver of rights form, and again made substantially the same confession.

Kennedy was indicted for kidnapping Mrs. Jones by a federal grand jury. 18 U.S.C. § 1201. Outside the hearing of the jury, the District Judge considered at length the defense contention that, in view of the total circumstances of Kennedy’s incarceration, the statement he gave to Detective Marchetta was involuntary. Kennedy also challenged the statement made subsequently to the FBI agent, arguing that the agent never informed him of his rights. The District Judge after an appropriate factual inquiry found against appellant on the facts and overruled the defense objections to both of these statements, admitting them into evidence.

The gist of appellant’s major contention is that the note and the subsequent statement to Marchetta were precipitated by a combination of circumstances and pressures occurring in the Hillsborough County jail during the two months before he spoke. Kennedy alleges that he was restricted to half rations and sequestered in solitary confinement during that time. He maintains that he was questioned daily by Marchetta as to any other crimes he might be able to clear up. The officers suggested in this daily interrogation that they would recommend that any sentences Kennedy might receive for additional crimes he confessed run concurrently with the sentence he was already under in the Florida state courts. Drugs were clandestinely available after he made his statements and, indeed, Kennedy alleges that he was able to obtain “bennies” from the deputy sheriff's desk as inducements to talk. In addition the appellant maintains that he was going through a stage of drug withdrawal symptoms at the time that he made this confession. Lastly, Kennedy argues that his statements were invalid because his repeated requests for an attorney were ignored by the sheriff’s department.

In support of his contention appellant cites several Supreme Court eases where the confessions were held involuntary when rendered in an atmosphere of overbearing police pressures. Clewis v. Texas, 1967, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423; Davis v. North Carolina, 1966, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895; Haynes v. Washington, 1963, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513. But where appellant fails is that the District Judge discredited all of the factual underpinnings of this theory by findings that are not clearly erroneous. The District Judge declined to give credence to appellant’s testimony. We agree that the District Court was warranted in concluding that there was insufficient evidence to show that the confession was involuntary. United States v. Gravitt, 5 Cir., 1973, 484 F.2d 375, 381. Similarly, we agree with the District Judge that appellant did not establish his contention that the FBI agent failed to give him the necessary warnings at the time of his second confession. United States v. Abigando, 5 Cir., 1971, 439 F.2d 827, 830.

Lastly, the appellant maintains that the government failed to prove its case because there was no evidence introduced to specifically identify the skeletal remains as those of Elva Lee Jones. Appellant would have this Court adopt the Florida law that proof of the identity of a deceased must be established beyond a reasonable doubt. Johnson v. State, 201 So.2d 492 (Ct.App.Fla.1967). Appellant is well aware that the standards to be applied to this ease are federal alone. The Fifth Circuit has recognized that the government is required only to prove by extrinsic evidence “that the offense in question likely has been committed.” Caster v. United States, 5 Cir., 1963, 319 F.2d 850, 852, cert. denied, 376 U.S. 953, 84 S.Ct. 972, 11 L.Ed.2d 973; United States v. Khandjian, 5 Cir., 1974, 489 F.2d 133. There is ample evidence presented by the government to show that Elva Lee Jones was kidnapped and carried to Florida and it was her body found at the end of that dirt road in Pasco County. We affirm the .decision of the trial court.

Affirmed.


text:
    Margaret M. BARRON, etc., Plaintiff-Appellee, v. Betty BELLAIRS, etc., Defendant, Richard H. Harden, etc., Defendant-Appellant. Christine SPELLERS, etc., Plaintiff-Appellee, v. Betty BELLAIRS, etc., Defendant-Appellee, Richard H. Harden, etc., Defendant-Appellant.
    No. 74-1210
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 28, 1974.

      Jay E. Loeb, David A. Webster, Atlanta, Ga., for Spellers.
    Wayne M. Pressel, John L. Cromartie, Jr., Bettye H. Kehrer, Atlanta, Ga., for Barron.
    Before COLEMAN, DYER and RONEY, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Barron and Spellers represent a class of recipients of Aid to Families with Dependent Children who were the intended beneficiaries of court ordered child support payments but who received sporadic payments. By order dated September 27, 1973 the district court held, and we think correctly so, that the “averaging method” employed by the defendants in determining income when unpredictable court ordered child support was received by recipients of Aid to Families with Dependent Children conflicted with federal regulations and was invalid. Retroactive injunctive relief and financial assistance to members of plaintiffs’ class was denied. With this we also agree. Edelman v. Jordan, 1974, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 [42 U.S.L.W. 4419].

Prior to entry of final judgment the Georgia General Assembly enacted the Child Support Recovery Act, Title 99 § 901b et seq., which removed the plaintiffs’ and the class they represent from the operation of the averaging regulations, and the Act was implemented with respect to the plaintiffs.

We affirm the district court’s denial of retroactive injunctive relief and financial assistance to members of plaintiffs’ class. The judgment enjoining the enforcement of the child support averaging policy, now superceded by the Child Support Recovery Act, is vacated and the case is remanded to the district court with directions to dismiss that portion of the proceedings as moot.

Affirmed in part, vacated in part, remanded with directions.

      . The Child Support Averaging policy, Part III, § VII p. 9 of the State Plan for AFDC provides in pertinent part that “when income is unpredictable, the previous year’s income (6 months in AFDC) may be used to determine monthly income.”

      . 45 C.F.R. § 233.20(a) (3) (ii)(c).

      . Plaintiffs’ dismissed their cross-appeals pursuant to Rule 42(b) F.R.A.P.


text:
    In the Matter of ERIE LACKAWANNA RAILWAY COMPANY, Debtor. Appeal of MORGAN GUARANTY TRUST COMPANY OF NEW YORK et al.
    No. 73-2108.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 7, 1973.
    Decided May 2, 1974.
    Frank C. Heath, Cleveland, Ohio, for appellants; Marc L. Swartzbaugh, William S. Paddock, Cleveland, Ohio (Jones, Day, Cockley & Reavis, Cleveland, Ohio, of counsel), on brief for Morgan Guaranty Trust Co. of New York and The Cleveland Trust Co.; Malvin E. Bank, Alan R. Lepene, Cleveland, Ohio (Thompson, Hiñe & Flory, Cleveland, Ohio, of counsel), on brief for First Nat. City Bank and United States Trust Co. of New York.
    Richard F. Stevens, Cleveland, Ohio, for debtor, appellees; Maurice M. Sayre, Cleveland, Ohio (Baker, Hostetler & Patterson, Cleveland, Ohio, of counsel), on brief, for Thomas F. Patton and Ralph S. Tyler, Jr., trustees of the debt- or, appellees.
    Before EDWARDS and LIVELY, Circuit Judges, and WILSON, District Judge.

       The Honorable Frank W. Wilson, Chief Judge, United States District Court for the Eastern District of Tennessee, sitting by designation.

   PER CURIAM.

This case presents an interlocutory appeal from an order denying certain items of discovery in a railway reorganization proceeding filed pursuant to section 77 of the Bankruptcy Act (11 U.S. C. § 205). The issues presented upon this appeal arose in the following manner. A petition for railway reorganization was filed on June 26, 1972. On September 21, 1972, the trustees of the debtor’s property petitioned the Court to be allowed to sell or lease certain mortgaged property no longer needed for railroad operations and to be allowed to apply the proceeds for continued operation of the railway under certain conditions. On February 5, 1973, the appellants, who are the indenture trustees for certain of the bondholders, filed interrogatories seeking to elicit evidence contended to be relevant to the issues presented by the reorganization trustees’ petition to sell mortgaged property and draw down funds. Information on operation projections was requested in certain of the interrogatories and objections to these were sustained by the district court upon the ground that “they seek premature answers based upon speculation and opinion.”

The initial contested issue in this appeal is with respect to the appeal-ability of the interlocutory order denying discovery. While conceding that section 24(a) of the Bankruptcy Act [11 U.S.C. § 47(a)] vests this Court with “appellate jurisdiction from the several courts of bankruptcy ... in proceedings in bankruptcy, either interlocutory or final, and in controversies arising in proceedings in bankruptcy,” the respondents contend that the order under review here involves a “controversy” to which appeals are limited to final orders, or otherwise is of such a preliminary nature as not to mandate appellate consideration. Suffice it to say, in the language of the case of Hoehn v. McIntosh, 110 F.2d 199, 201 (6th Cir. 1940) that while “[w]e might refuse to review the order as it is interlocutory, our jurisdiction is plain if

With respect to the merits of this appeal, while it would appear to this Court from the record before it that the rejected interrogatories might well have presented matters appropriate for discovery under Rules 26(b)(1) and 33(b) of the Federal Rules of Civil Procedure, it would further appear that this Court should not disturb the discretionary action of the lower court in denying discovery at the particular stage of the proceedings below when it did so. This conclusion is further buttressed by the fact that the appellants will be entitled to seek the same information at the time of the hearing upon the petition for an order of sale or lease of secured assets. Relief upon this appeal will accordingly be denied.


author: BY THE COURT:

text:
    John Weston FRATUS, Jr., a/k/a John Weston Greene, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. John Weston FRATUS, Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee,
    Nos. 73-2291, 73-2293.
    United States Court of Appeals, Fifth Circuit.
    July 5, 1974.

      Charles O. Mitchell, Jr., Jacksonville, Fla. (Court-appointed), R. Lee Utley, Jr., Jacksonville, Fla., for petitioner-appellant.
    John L. Briggs, U. S. Atty., Howard T. Snyder, Robert S. Yerkes, Asst. U. S. Attys., Jacksonville, Fla., for respondent-appellee.
    Before BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.
   BY THE COURT:

It is made known to the court by the United States that according to the records of the National Crime Information Center the appellant is a fugitive on two unrelated and serious state criminal charges. His appeal is therefore dismissed, United States v. Shelton, 482 F.2d 848 (CA5, 1973), without prejudice to reinstatement should appellant or his counsel show to the court that the information as to his present fugitive status is erroneous.


text:
    Robert W. STAUDMIER, Petitioner-Appellant, v. UNITED STATES of America, and Warden S. J. Britton, U. S. Penitentiary, Leavenworth, Kansas, Respondent-Appellee.
    No. 73-1809.
    United States Court of Appeals, Tenth Circuit.
    Submitted May 9, 1974.
    Decided June 3, 1974.
    Robert W. Staudmier, pro se.
    Before PICKETT, Senior Circuit Judge, and SETH and McWILLIAMS, Circuit Judges.
   PER CURIAM.

Appellant Staudmier, an inmate of the United States Penitentiary, Leavenworth, Kansas, petitioned the United States District Court for the District of Kansas for habeas corpus relief. In support of the petition, Staudmier alleged that prison authorities failed to properly aggregate his sentences as provided by 18 U.S.C. § 4161; that good time credit was therefore earned at a rate lower than that to which he was entitled ; and that he is, as a result, being held past his expiration date and is entitled to immediate release. The district court found these contentions to be without merit and denied relief. We affirm.

Staudmier’s incarceration is the result of a number of convictions. He was convicted of bank robbery on October 30, 1964; bank robbery, escape from, a U.S. Marshall and assaulting a guard employed by the U.S. Marshall on March 25, 1965; and attempted escape on June 13, 1967. Sentences as a result of the 1964 and 1965 convictions were imposed pursuant to the Youth Corrections Act (18 U.S.C. § 5010) and were to run concurrently to one another. The sentence following the 1967 conviction was not imposed pursuant to the Youth Corrections Act and was to run consecutively to the earlier sentences. Staudmier was paroled on February 16, 1972 from the sentences imposed under the Youth Corrections Act and, at that time, began serving the 1967 sentence.

In the instant proceedings, Staudmier contends that the 1967 sentence which he is now serving should have been aggregated pursuant to § 4161 with the earlier sentences imposed under the Youth Corrections Act. We find no merit to this contention. By its very terms, § 4161 is applicable only to sentences to a definite term. Staudmier’s 1967 sentence to five years confinement is such a definite term. However, youthful offenders sentenced pursuant to 18 U.S.C. § 5010 are sentenced to the custody of the Attorney General for treatment and supervision until discharged as provided by 18 U.S.C. § 5017. Such sentences are thus for indeterminate terms. Hale v. United States, 307 F.Supp. 345 (D.C.Okl.1970). See also, United States v. Hartford, 489 F.2d 652 (5th Cir. 1974); United States v. Smith, 464 F.2d 194 (10th Cir. 1972). The aggregation provisions of 18 U.S.C. § 4161 are therefore clearly inapplicable to sentences imposed under the Youth Corrections Act.

Upon docketing, the parties were notified that we were considering summary affirmance and of their respective rights to oppose or support such action. Staudmier responded with a short letter in opposition to summary affirmance. Nevertheless, after carefully and thoroughly reviewing the records and files of this case, we have concluded that the action of the district court was correct.

Affirmed.


text:
    SECURITIES AND EXCHANGE COMMISSION, Appellee, v. HAFFENDEN-RIMAR INTERNATIONAL, INC., et al., Appellants.
    No. 73-2297.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 8, 1974.
    Decided May 29, 1974.
    Joseph E. Casey and Edward F. Can-field, Washington, D. C., for appellants.

      Frederick T. Spindel, Sp. Counsel, S. E.C. (Lawrence E. Nerheim, Gen. Counsel, Walter P. North, Associate Gen. Counsel, Jacob H. Stillman, Asst. Gen. Counsel, Glynn L. Mays and Lloyd F. Ryan, Jr., Attys., S.E.C., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and RUSSELL and FIELD, Circuit Judges.
   PER CURIAM:

This is an appeal from an order of the United States District Court for the Eastern District of Virginia permanently enjoining appellants from selling casks of whiskey in storage in Scotland upon the ground that such sales were violations of the registration provisions of § 5 of the Securities Act of 1933, 15 U.S. C. § 77e(a) and (c); the antifraud provisions of § 17 (a) of that Act, 15 U.S.C. § 77q(a); § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder. SEC v. Haffenden-Rimar International, Inc., et al., 362 F.Supp. 323 (1973).

The only issue in this case is whether appellants were engaged in the sale of casks of scotch whiskey as a commodity, in which case the Securities Acts are not applicable, or whether the offer and sale of scotch whiskey in light of the totality of the conditions and circumstances constitute the offer and sale of a security in the form of an investment contract, within the meaning of § 2(1) of the Securities Act of 1933, 15 U.S.C. § 77b(1).

The Supreme Court has repeatedly reminded that securities legislation is to be construed “not technically and restrictively, but flexibly to effectuate its remedial purposes.” SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 195, 84 S.Ct. 275, 285, 11 L.Ed.2d 237 (1963), cited in Affiliated Ute Citizens v. United States, 406 U.S. 128, 151, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972). See also Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967).

It has also stated that, in considering whether a contract constitutes a security in the nature of an investment contract within the Securities Acts, it is necessary to examine

* * * what character the instrument is given in commerce by the terms of the offer, the plan of distribution, and the economic inducements held out to the prospect. In the enforcement of an act such as this, it is not inappropriate that promoters’ offerings be judged as being what they were represented to be.

SEC v. C. M. Joiner Leasing Corp., 320 U.S. 344, 352-353, 64 S.Ct. 120, 124, 88 L.Ed. 88 (1943).

The parties do not differ significantly on the proper definition of a security. The government suggests that a security contemplates a relationship that limits the investors’ role to providing capital with the hope of a favorable return in a business operated by others. Appellants suggest that a security requires two elements: 1) an investment of money in a common enterprise, and 2) the production of profits solely from the efforts of others.

Similarly, the material facts of the case are stipulated.

Indeed, the only question in this case is the proper characterization of the stipulated activity of the appellants.

The district court, in a thorough review of the operation of the appellants’ business, the promotion of the sale of the whiskey, and the relevant aspects of the scotch whiskey industry, concluded that the offer and sale of scotch whiskey, under the totality of the circumstances, constituted an offer and sale of a security in the form of an investment contract. The Second Circuit, in a recent, similar case, reached the same conclusion. SEC v. Glen-Arden Commodities, Inc., 493 F.2d 1027 (1974).

Accordingly, we adopt the memorandum opinion of the district court, and affirm.

Affirmed.


text:
    Mildred JEFFREY, Individually and as mother, natural and confirmed tutrix of the minor, Stephen Clark Jeffrey, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.
    No. 74-1145
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 5, 1974.
    Charles R. Maloney, Forrest L. Beth-ay, Sr., New Orleans, La., for plaintiff-appellant.
    Richard L. Bodet, Jerry L. Saporito, Metairie, La., for defendant-appellee.
    Before COLEMAN, DYER and RONEY, Circuit Judges.

       Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

In this diversity products liability case, we can find no justification in the record for the District Court’s dismissal on its own motion under F.R. Civ.P. 19(b). There is nothing before us to show that the ease could not proceed against General Motors Corporation on a products liability theory without the joinder of any other party. Indeed the appellee, General Motors Corporation, concedes as much when it first failed to brief this appeal in the time required by the rules and then in its brief filed at the request of this Court concedes that “[i]t doeb believe, however, that there, was not sufficient basis for the Court to dismiss pursuant to Rule 19.” When a District Court errs on its own motion in such a way as this, it would progress the litigation for the defendant to join with the plaintiff in bringing the matter to the attention of the trial court. If the trial court had the advantage of the briefs which have been filed with us, we have no doubt that the error would have been expeditiously corrected and the litigation could be well oh its way by now without burdening the system with an unnecessary appeal.

The costs of this appeal are taxed against the appellee.

Vacated and remanded.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LUNDAY-THAGARD OIL COMPANY, Respondent.
    No. 73-2176.
    United States Court of Appeals, Ninth Circuit.
    June 19, 1974.
    Joseph E. Mayer (argued), R. Bruce McLean, Elliott Moore, Acting Asst. Gen. Counsel, Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, N.L.R.B., Washington, D. C., Wilford W. Johansen, Director, Region 21, N.L.R.B., Los Angeles, Cal., for petitioner.
    Robert M. Lieber (argued), Littler, Mendelson & Fastiff, San Francisco, Cal., for respondent.
    George A. Pappy, of Brundage, ISfeyhart, Miller, Reich & Pappy, Los Angeles, Cal., for charging party.
    Before ELY and CARTER, Circuit Judges, and EAST, District Judge.

       Honorable William G. East, Senior United States District Judge, Eugene, Oregon, sitting by designation.

   OPINION

PER CURIAM:

The record does not support the respondent’s contention that it was deprived of significant procedural rights. See the Board’s Rules and Regulations, 29 C.F.R. § 102.69 (c.) (1973); see also NLRB v. Singleton Packing Corp., 418 F.2d 275, 280 (5th Cir. 1969), cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed. 2d 53 (1970); Sonoco Products Co. v. NLRB, 399 F.2d 835, 839 (9th Cir. 1968); NLRB v. J. R. Simplot Co., 322 F.2d 170, 172 (9th Cir. 1963). Upon the basis of the record and the Petitioner’s Decision and Order, reported at 203 NLRB No. 12, the challenged Order will be

Enforced.


author: PER CURIAM: BY THE COURT:

text:
    UNITED STATES of America, Plaintiff, v. Anthony Frederick VANO et al., Defendant. In re Herbert SHAFER, Attorney at Law, Appellant.
    No. 73-3098
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 3, 1974.
    Herbert Shafer, Atlanta, Ga., for appellant.
    John W. Stokes, U. S. Atty., William P. Gaffney, Asst. U. S. Atty., Atlanta, Ga., for plaintiff.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

       Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409.

   PER CURIAM:

Affirmed. See Local Rule 21. The certificate required by Rule 42(a), F.R. Crim.P., has now been filed. See prior order of this court appended hereto. The underlying evidentiary basis for .the contempt adjudication in question is adequate and the record does not support the claim that the contempt process was used “to shackle cross-examination.”

APPENDIX

ORDER

April 22, 1974.

BY THE COURT:

Appellant, an attorney, was adjudged in contempt on the basis of conduct occurring in the examination of a witness. The record is entirely adequate to support the contempt adjudication. However, the district judge failed to execute the certificate required by Rule 42(a), F.R.Crim.Procedure, relying instead on his statements in open court.

The order adjudging appellant in contempt is vacated and the cause is remanded to the district court for the limited purpose of affording the district judge the opportunity to issue the necessary certificate. Jurisdiction is otherwise retained in this court pending either receipt of the certificate or advice from the district judge, within thirty days from the date hereof, that the certificate will not be forthcoming.

      . See NLRB v. Amalgamated Clothing Workers of America, 5 Cir. 1970, 430 F.2d 966.

      . “Summary Disposition — A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.”


author: ROBERT P. ANDERSON, Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Mr. McBRIDE, d/b/a McBride’s Shell Service and/or Action Super Shell, Defendant-Appellant.
    No. 7-8.
    Temporary Emergency Court of Appeals.
    June 19, 1974.
    W. Mauldin Smith, W. Mauldin Smith & Associates, Chicago, 111., for defendant-appellant.
    Jack Wesoky, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
    Before ANDERSON, VAN OOSTER-HOUT and HASTINGS, Judges.
   ORDER OF AFFIRMANCE UNDER RULE 28

ROBERT P. ANDERSON, Judge.

The court having considered the record and briefs on this appeal and having found no reversible error in the decision of the District Court, the judgment is affirmed.


text:
    NATURAL RESOURCES DEFENSE COUNCIL, INC., a non-profit New York corporation, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. NATURAL RESOURCES DEFENSE COUNCIL, INC., a non-profit New York corporation, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
    Nos. 72-2143, 72-2147.
    United States Court of Appeals, Ninth Circuit.
    June 11, 1974.
    Richard E. Ayres, Natural Resources Defense Council (argued), Washington, D. C., for petitioners.
    Thomas C. Lee, James R. Moore, argued, Civil Div. Dept, of Justice, Washington, D. C., for respondent.
    Before TRASK and SNEED, Circuit Judges, and LINDBERG, District Judge.

       Honorable William J. Lindberg, Senior United States District Judge, Western District of Washington, sitting by designation.

   ORDER

Discussions have continued between the Environmental Protection Agency and officials of the State of Washington pending argument and, with the approval of the court, after argument in anticipation of a settlement of the issues. It now appears that the Washington plan has been modified and may be further modified to accommodate objections between parties.

Because negotiations are ongoing and the issues not clearly joined the petition in No. 72-2147 is dismissed without prejudice to a later refiling should any issues remain in disagreement.

It is ordered that No. 72-2145 is hereby submitted for decision upon the basis of the briefs, oral argument, and the supplementary memoranda and stipulations filed subsequent to oral argument.


text:
    Eva L. BARNES, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    No. 74-1156.
    United States Court of Appeals, Sixth Circuit.
    May 14, 1974.
    Eva Louise Barnes, on brief pro se.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Gary R. Allen, Jeffrey S. Blum, Attys., Tax Div., Dept, of Justice, Washington, D. C., on brief, for appellee.
    Before EDWARDS, MILLER and EN-GEL, Circuit Judges.
   ORDER

This appeal was assigned to a panel of this court for consideration under Rule 3 (e) of the Rules of the Sixth Circuit.

On receipt and consideration of the briefs and the record in said appeal,

And noting that appellant is appearing pro se and therefore having examined the proceedings below with special care,

And noting that a divorce decree awarding appellant $500 per month alimony was entered in Jefferson County Circuit Court and affirmed on appellant’s appeal in the Court of Appeals of Kentucky, Barnes v. Barnes, 415 S.W.2d 602 (1966),

And noting that the record shows conclusively that said payments qf $500 per month have been made under said decree during the years in question,

And further noting that “alimony” is taxable income, Int.Rev. Code Section 71 (a)(1) but in fact appellant filed no income tax returns and paid no taxes during the years in question,

Therefore on its own motion, this court affirmed the judgment of the Tax Court 73, 189 P-H Memo TC, on the grounds that the issues sought to be presented are so unsubstantial as not to need further argument.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MISSION RUBBER COMPANY, INC., Respondent.
    No. 73-1703.
    United States Court of Appeals, Ninth Circuit.
    June 19, 1974.

      A. Bashir (argued), Wilford W. Johansen, Director, Region 21, N.L.R.B., Los Angeles, Cal., Elliott Moore, Acting Asst. Gen. Counsel, N.L.R.B., Washington, D. C., for petitioner.
    A. Patrick Nagel (argued), Stephen C. Drummy, of Nagel, Regan & Davidson, Newport Beach, Cal., for respondent.
    Before DUNIWAY and GOODWIN, Circuit Judges, and SKOPIL, District Judge.

       The Honorable Otto R. Skopil, United States District Judge for the District of Oregon, sitting by designation.

   OPINION

PER CURIAM:

The petitioning Board’s decision and order are published at 202 N.L.R.B. No. 17, 82 L.R.R.M. 1801 (1973). The Board’s findings that Mission Rubber violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and 158(a)(3), are supported by substantial evidence. See NLRB v. Miller Redwood Co., 407 F.2d 1366 (9th Cir. 1969). Accordingly, the Board’s order will be enforced.


text:
    Arthur L. WILLIE and B. Lorene Willie, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    No. 73-2755.
    United States Court of Appeals, Ninth Circuit.
    June 20, 1974.
    Arthur L. Willie, B. Lorene Willie, pro se.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Chief, Appellate Sec., Robert G. Burt, Ann Belanger Durney, Tax Div., U. S. Dept, of Justice, Lawrence B. Gibbs, Acting Chief Counsel, IRS, Washington, D. C., for appellee.
    Before CARTER and GOODWIN, Circuit Judges, and SCHNACKE, District Judge.

       Honorable Robert H. Schnacke, United States District Judge, Northern District of California, sitting by designation.

   OPINION

PER CURIAM:

The findings of fact of the Tax Court are not clearly erroneous. The opinion of the Tax Court is reported at 32 T.C. M. 184.

The judgment is affirmed.


text:
    UNITED STATES FIRE INSURANCE COMPANY, Plaintiff-Appellant, v. CHINA UNION LINES LIMITED, Defendant-Appellee.
    No. 927, Docket 73-2552.
    United States Court of Appeals, Second Circuit.
    Argued May 9, 1974.
    Decided May 22, 1974.

      James H.. Simonson, New York City (Bigham Englar Jones & Houston, New York City, on the brief), for plaintiff-appellant.
    Edward H. Duggan, Jr., New York City (Hill, Betts & Nash, Eli Ellis, Allan J. Berdon, New York City, on the brief), for defendant-appellee.
    Before ANDERSON, FEINBERG and MANSFIELD, Circuit Judges.
   PER CURIAM:

The judgment of the district court is affirmed upon the opinion of Judge Motley. 375 F.Supp. 652 (1974).