source: Caselaw Access Project

author: RICH, Judge.

license: Public Domain

text:
    FOOD SPECIALTY CO., INC. (New England Fish Company, By Substitution), Appellant, v. KAL KAN FOODS, INC., Appellee.
    Patent Appeal No. 9033.
    United States Court of Customs and Patent Appeals.
    Dec. 20, 1973.
    Robert W. Beach, Seattle, Wash., attorney of record, for appellant; George R. Jones, Beale & Jones, Arlington, Va., of counsel.
    Stephen Grubb, Los Angeles, attorney of record, for appellee; Francis D. Thomas, Jr., Arlington, Va., of counsel.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   RICH, Judge.

This appeal is from the decision of the Patent Office Trademark Trial and Appeal Board (TTAB), 171 U.S.P.Q. 315 (1971), dismissing appellant’s opposition to the registration by appellee of application serial No. 319,771, filed February 24, 1969, claiming first use in January 1968, of -the following mark for canned cat food:

The basis of appellant’s opposition is solely its ownership and registration of the trademark “KITTY” for cat food, Reg. No. 702,658, issued August 9, I960. Heavy reliance is also placed on two pri- or decisions of this court involving the same registration, Food Specialty Co. v. Standard Products Co., 406 F.2d 1397, 56 C.C.P.A. 1005 (1969), in which we reversed a decision of the TTAB dismissing appellant’s opposition to the registration of “Pretty Kitty” for cat food, and Food Specialty Co. v. Catz American Co., 433 F.2d 817, 58 C.C.P.A. 710 (1970), in which we reversed a decision of the TTAB denying appellant’s petition to cancel a registration of “HERE, KITTY!” for canned cat food.

We now consider an opposition to the registration of another mark for canned cat food which includes the word “KITTY,” but in quite a different context. Appellee seeks to register a composite mark, as shown above, in which the word “KITTY” plays an entirely different role or functions in quite a different manner than it did in “Pretty Kitty” and “HERE, KITTY!”.

The goods of the parties being the same and appellant being the prior user, the sole issue, as the board said, is “whether or not the sale of cat food under the marks here in issue is reasonably likely to cause confusion in trade as to origin or sponsorship.” (15 U.S.C. § 1052(d).) For a summary of the facts established and the evidence of record, we refer to the opinion of the board.

It is basic to our consideration, of course, that we must look at appellee’s mark as a whole. Burroughs Wellcome & Co. v. Mezger Pharmacal Co., 228 F.2d 243, 43 C.C.P.A. 703 (1955); Colgate-Palmolive Co. v. Carter-Wallace, Inc., 432 F.2d 1400, 58 C.C.P.A. 735 (1970). The board correctly so held. Appellant appears to suggest that we should ignore this basic rule for the reason that “KAL KAN” is the subject of Reg. No. 715,530, the diamond band is the subject of Reg. No. 763,629, the cat’s head is simply decoration and the words “KITTY STEW” are separable from the other three elements and constitute the dominant element of the mark. Neither the fact that one can mentally divide or dissect the mark into four components nor the fact that two of them are the subject of prior registrations is a valid reason for not considering the mark appellee seeks to register as a whole. We agree with the board that the reason we must do so is that it is the whole mark that makes the commercial impression on the purchaser.

Another point urged on us by appellant is that “KAL KAN” is a “house mark” and that in several cases this court and other tribunals have held marks likely to cause confusion notwithstanding the simultaneous use with those marks of house marks. We have reviewed those cases but do not consider them to present parallel situations to the joint use of “KAL KAN” and “KITTY STEW.” The distinguishing feature is that in each of the cited cases the mark used with the house mark was an arbitrary mark while here, as we shall point out, “KITTY STEW” is not arbitrary.

While appellant has an “incontestable” registration of “KITTY” alone as a trademark for cat food, there are inherent limitations on its right to control use of the word “kitty” in connection with products for cats, even including cat food, because of its obvious descriptive connotation. There is nothing obscure about what “kitty” means. We scarcely need to cite a dictionary. Practically every English-speaking person absorbed into his vocabulary the words cat, kitten, and kitty in infancy; if he did not there was something unusual about his environment. We see no need to discourse upon their meanings.

In appellee’s composite mark, “KAL KAN” is clearly the dominant origin-indicator. It looks like one, it is the origin-indicating portion of the name of the company which is the source of the product, and the evidence of record shows that there are or have been some twenty-seven other “KAL KAN” food products for dogs and cats. The two common English words “KITTY STEW” thereunder are obviously intended to and do convey a meaning other than the origin of the goods. Literally, there are two possible meanings: a stew of kitties or a stew for kitties. The former is so improbable in this country *S.that there is virtually a single realistic meaning, a stew of some kind to be fed to cats or kittens. This is so even though, as appellant points out, the specimen label also says “FOR CATS.” Appellee makes much of the fact that the examiner of its application, in what was obviously his first office action, said, “The descriptive wording KITTY STEW should be disclaimed apart from the mark shown,” and that such a disclaimer was filed. While we do not see any particular legal significance to the existence of the disclaimer with respect to the issue in this case, we accept the examiner’s requirement as evidence that he, at least, considered the words descriptive. We likewise regard them as descriptive of the product, meaning that the contents of the can is a stew for kitty-cats.

The board has accurately pointed out the basic difference between our prior decisions involving appellant’s trademark and the situation here in saying that we found that the addition of “PRETTY” or “HERE” to the term “KITTY” was insufficient to create a commercial impression sufficient to distinguish the resulting marks from appellant’s trademark “KITTY,” but that those decisions are not a

* * * precedent for the broad proposition that the inclusion of the term “KITTY” as a part of a unitary mark used for cat food must necessarily be in conflict with opposer’s “KITTY” mark.

Appellant has argued that appellee’s composite mark incorporates its registered mark in its entirety. We cannot agree with that as a legal proposition. Considering that its mark consists of a common English word and that that word, as used in appellee’s composite mark, merely conveys its common meaning, rather than serving to indicate origin, we have to say to appellant that under these circumstances, its trademark is not incorporated in appellee’s mark at all. When “kitty” is used with other words only as an adjective modifying “stew,” to indicate that the stew is for kitties, it is devoid of the trademark character or “secondary meaning” it has in other contexts in which it indicates origin. We also point out that we are not dealing with an attempt to register “KITTY STEW” but only -the totality of the mark as above illustrated.

The decision of the board is affirmed.

Affirmed.

      . The registration issued to Food Specialty Co., Inc., but was assigned, together with the goodwill of the business etc., on March 29, 1972, to New England Fish Company, a corporation of Maine having its principal place of business in Seattle, Washington. The assignment is recorded in the Patent Office.

      . Celanese Corporation of America v. E. I. duPont de Nemours & Co., 154 F.2d 143, 33 C.C.P.A. 857 (1946) ; The Firestone Tire & Rubber Co. v. Montgomery Ward & Co., 150 F.2d 439, 32 C.C.P.A. 1074 (1945); Ex parte The Stadler Products Co., 87 U.S.P.Q. 163 (Comr.Pats.1950); Menendez v. Holt, 128 U. S. 514, 9 S.Ct. 143, 32 L.Ed. 526 (1888); William Sanderson & Son Ltd. v. Fernandes and Co., 137 U.S.P.Q. 165 (TTAB 1963); California Prune & Apricot Growers Assn. v. Dobry Flour Mills, Inc., 101 F.2d 838, 26 C.C.P.A. 910 (1939); and Richard Hellman, Inc. v. Oakford & Fahnestock, 54 F.2d 423, 19 C.C.P.A. 816 (1932).

      . We are here taking judicial notice of the general sentiment toward kitties which differs from that toward rabbits (bunnies), chickens, ducks, and other sometime small-animal pets. We limit the observation to this country and the domestic operation of domestic trademark law because elsewhere in the world the situation and sentiment may well be different.


author: ALDRICH, Senior Circuit Judge:

text:
    UNITED STATES of America, Plaintiff, Appellee, v. Ida Mae EVERIDGE, Defendant, Appellant.
    No. 73-2201.
    United States Court of Appeals, Ninth Circuit.
    Nov. 20, 1973.
    Rehearing Denied Jan. 10, 1974.

      Rubin Salter, Jr. (argued), Kipps & Salter, Tucson, Ariz., for defendant, appellant.
    William C. Smitherman, U. S. Atty., Ronald Jennings, Stephen M. McNamee, Asst. U. S. Attys., P. Michael Drake (argued), Tucson, Ariz., for plaintiff, ap-pellee.
    Before ALDRICH, ELY and CHOY, Circuit Judges.

       Honorable Bailey Aldrich, United States Senior Circuit Judge, First Circuit, sitting by designation.

   ALDRICH, Senior Circuit Judge:

The issues on this appeal from a conviction of possession of heroin with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), require a somewhat detailed statement of the facts. In early February 1973, government narcotics undercover agent Fontenot met one Ogans in Tucson. Subsequently Ogans inquired if Fontenot was interested in purchasing heroin, and Fontenot said he had a customer. On February 20 Ogans came to Fontenot’s room in the Tucson Inn for a prearranged discussion. He was accompanied by defendant, Ida Mae Everidge, not then identified by name. After some conversation in which narcotics were not mentioned, Ogans and Fontenot went outside to meet with Stewart, the purported customer, who, in fact, was another undercover agent. Ogans invited Stewart inside to talk with defendant, but Stewart refused. He and Ogans discussed terms. Ogans went back to the room, assertedly to check with defendant, and returned saying “she” was agreeable. Ogans then give Stewart a slip of paper with “her” telephone number and asked him to call the next morning at 10:00 to arrange for delivery. On this occasion Stewart noted a blue-over-white Buick in the parking lot, with a registration number which proved to be defendant’s.

February 21, the next morning, Stewart called the designated number and a woman answered, identifying herself as “Johnny.” Without objection, Stewart testified to the voice being that of the defendant. In addition to the voice identification, this telephone was shown to be listed to a neighbor in defendant’s duplex apartment building. “Johnny” asked Stewart to call again at 6:00, which he did, and a meeting with Ogans was arranged for later that evening in the Inn’s parking lot. That evening Ogans and Stewart met in the parking lot. Ogans said “she” had the stuff, but had not arrived. Ogans departed and returned with heroin, whereupon other agents manifested themselves and he was arrested.

During this time a blue-over-white Buick, with one occupant, unidentifiable because of the darkness, was seen in the parking lot. While Ogans was being arrested, this car drove off. It was pursued and found to be defendant’s. Defendant, alone, was therein.

Defendant and Ogans were jointly indicted, but defendant was separately tried. Ogans did not testify. Defendant objects to the admission of Stewart’s testimony of what Ogans told him on February 20 and 21, implicating her as the vendor or supplier, because of her inability to confront Ogans, relying principally upon Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The reliance is misplaced. It is true that, in Bruton, as an hypothesis to the mooted question whether a jury could be relied on to disregard an extra-judicial statement by a codefendant implicating the petitioner, the Court considered and held the statement inadmissible against him. That particular statement clearly was such, being a post-arrest confession to the effect that declarant and petitioner had committed the crime. The Court explicitly observed, “There is not before us, therefore, any recognized exception to the hearsay rule insofar as petitioner is concerned . . .” and “intimate [d] no view whatever” on such statement’s admissibility. Bruton, therefore, does not help defendant. The later case of Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), a case directly involving the Confrontation Clause, destroys her. Taking note of the question reserved in note 3 of Bruton, the Court proceeded to answer it. “[W]e do not question the validity of the coeonspirator exception applied in the federal courts.” 400 U.S. at 80, 91 S.Ct. at 215.

So much for defendant’s invocation of the Confrontation Clause to defeat the coconspirator exception. His assertion that certain limited types of otherwise admissible hearsay may be excluded by reason of that clause, see California v. Green, 399 U.S. 149 at 155-156, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), cannot support him. United States v. Johnson, 463 F.2d 216 at 217, n. 2 (9th Cir. 1972). If there could be any doubt as to this, it may be noted that Dutton was decided after Green.

In the case at bar the only question, therefore, is whether there was sufficient admissible evidence, apart from the contested statement itself, that defendant was a coconspirator. In this respect it is not necessary that the defendant be actually indicted as a conspirator; the question is merely whether there was proof of a sufficient concert of action to show the individuals to have been engaged in a joint venture. United States v. Williams, 435 F.2d 642 (9th Cir. 1970), cert. denied, 401 U.S. 995, 91 S.Ct. 1241, 28 L.Ed.2d 533; Kay v. United States, 421 F.2d 1007 (9th Cir. 1970). The evidence amply established such. The fact that some of this evidence post-dated the statements in question is of no consequence, so long as its natural tendency, when introduced, was to show the concert of action to have been existing at the time of the statement. On the above-recited evidence, quite apart from Ogans’ statements to Stewart regarding the defendant, the conclusion was well warranted that defendant was involved in the activity in question at least as a co-principal.

Finally, defendant misconceives the applicability of the rule requiring the court, at least on request, to charge the jury that the testimony of an alleged accomplice is to be subjected to particular scrutiny. This rule, and the reasons for it, relate to testimony given by an accomplice in court. See United States v. Davis, 439 F.2d 1105 (9th Cir. 1971); Phelps v. United States, 252 F.2d 49 (5th Cir. 1958). We are not presently concerned with court testimony by Ogans serving to incriminate the defendant, for which he might well have special motives that the jury should consider, but with testimony by government agent Stewart of what Ogans had said, contemporaneously, during the course of the transaction. The rule does not apply to Stewart, nor does it in some retrospective manner to Ogans’ extrajudicial utterances. The request was properly denied.

Affirmed.

      . Both parties, seemingly by some prior arrangement, skirted lightly over the basis for this identification.

      . It may be conceded that this particular statement was dictum, so far as the question actually decided was concerned. However, it was an easier point to reach, and would have followed, a fortiori, from the point decided. In fact, we do not read even the dissent as expressing any doubts as to the correctness of the quoted statement. See 400 U.S. at 106, 91 S.Ct. 210.

      . Judge Ely’s dissent in Williams was not to the principle, but to its application in that case.


author: DUNIWAY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Francisco BUSTAMANTE-GAMEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Abelardo GARCIA-RAMIREZ, Defendant-Appellant.
    Nos. 72-3188, 72-3189.
    United States Court of Appeals, Ninth Circuit.
    Oct. 24, 1973.

      Lewis A. Wenzell (argued), Federal Defenders, San Diego, Cal., for defendants-appellants.
    Douglas G. Hendricks, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Jeffrey F. Ár-betman, Asst. U. S. Attys., San Diego, Cal., for plaintiff-appellee.
    Before DUNIWAY and TRASK, Circuit Judges, and LUCAS, District Judge.

       The Honorable Malcolm M. Lucas, United States District Judge, Central District of California, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

Bustamante-Gamez and Garcia-Ramirez appeal from their convictions under 21 U.S.C. §§ 841(a), 846, for possessing marijuana with intent to distribute and conspiring to commit that offense. They challenge only the district court’s denial of their motion to suppress certain evidence obtained as a result of an allegedly improper search. We affirm.

On August 9, 1972, Customs agents at the port of entry at San Ysidro, California, discovered 40 kilos of marijuana hidden in a compartment above the gas tank of a 1964 Pontiac station wagon which had been driven into the United States from Mexico. The driver said that he had been hired to deliver the car to a parking lot near the San Diego Zoo. The agents accompanied him to this location, and set up a watch.

A short time later the Pontiac was entered by two Mexican-appearing men, who drove it to the 11000 block of Calle Jalapa in San Diego and parked it on the street. A stake-out of this area was set up by the law enforcement officials, whose ranks had by now swelled to include five Customs agents and two San Diego police officers. Of necessity, they positioned themselves out of sight of the Pontiac. After a wait of some twenty minutes, one of the agents discovered, to his horror, that the Pontiac had disappeared. A radio check with the other officers indicated that it had not left Calle Jalapa, and an intensive investigation of that area was begun.

Before losing the Pontiac, the officers had seen the following: When they had first arrived on the scene, three garage doors of the homes on the block were open. The owner of one of those houses, at 11262 Calle Jalapa, directly across the street from where the Pontiac was parked, later identified as one Bill Barsby, had been seen watering his lawn and conversing with a Mexican male who fitted the description of the driver of the Pontiac. Barsby had also been seen driving a red Chevrolet, making a U-turn, and apparently looking at the officers who were conducting the stake-out. The officers now observed that two of the garages were closed, one at 11262 Calle Jalapa, and one on the side of the street located where the Pontiac had been, one house down from that point. The agents’ investigation added something to this information. Neighbors informed them that Barsby was normally at work at that time of day, and that young Mexican males had been known to frequent a house near where the Pontiac had been parked. However, that house could not be identified with any particularity, nor had anyone seen the car driven into a garage.

Finally, one of the agents walked up a short driveway to the garage door at the 11262 address and heard sounds which he described as “cloth dragging on the cement floor, a grunt, groan, and a tool hitting the floor.” He notified the other officers of his discovery, and they1 congregated at that house. One of them approached the front door, knocked, and announced that he was a federal officer who was there to make an arrest. Simultaneously another agent opened the garage door, which was unlocked, revealing the Pontiac, the defendant Busta-mante, and several kilo bricks of marijuana. Garcia was later found hiding in a doghouse in the back yard.

1. Probable cause.

The primary issue on this appeal is whether the officers had probable cause to believe that the Pontiac was in the garage at 11262 Calle Jalapa. The question is a close one. We hold that, before obtaining information through eavesdropping at the garage door, the officers had probable cause to believe that the car was inside. Certainly they had probable cause to believe that the car was in one or the other of the two recently closed garages. There was nowhere else for it to be. The activities of Barsby, including the fact that he had been observed talking with a man who resembled the driver of the load car, gave them reason to believe that he was in on the plot, and that the car was in his garage rather than the other garage. The eavesdropping confirmed that belief.

2. The validity of the entry.

The defendants argue that, assuming that the officers had probable cause to believe that the Pontiac was in the garage at 11262 Calle Jalapa, the entry upon the driveway to listen, and the entry into the garage were illegal because no warrant was obtained and, as to entering the garage, because the requirements of 18 U.S.C. § 3109 were not complied with. We disagree.

A. The Warrant Issue.

The entry upon the driveway and the later entry into the garage have raised somewhat different legal problems. Before the eavesdropping, the officers did not know whether anyone was in the garage or the house. Whoever put the car in the garage might have left by a route at the back of the house, not visible to the officers. Thus the officers had cause to believe only that the car, loaded with contraband, was in the garage. Entering the driveway was for purposes of “search” — i.e., to overhear. Katz v. United States, 1967, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576. It was not an entry to arrest.

The entry into the garage is different. What the officers heard in the driveway supported a reasonable belief that someone was then working on the car. The Pontiac was “poison.” It was known to contain contraband, which could be seized, and the car was subject to possible forfeiture. It was thus a legitimate objective of a search. Moreover, anyone exercising dominion over it was subject to arrest, with or without a warrant. See 26 U.S.C. § 7607(2); United States v. Cisneros, 9 Cir., 1971, 448 F.2d 298, 302. It makes no difference that the officers did not know the identity of whoever was in the garage. United States v. Llanes, 2 Cir., 1968, 398 F.2d 880, 883. The entry into the garage was expressly for the purpose of an arrest.

For the purpose of this ease, we assume that the eavesdropping involved an entry upon the curtilage, and thus could be lawfully made, even with probable cause, only under a warrant or under exceptional circumstances permitting entry without a warrant.

It is by no means certain that the entry upon the driveway was contrary to the Fourth Amendment, even though there were no warrant or exceptional circumstances excusing failure to obtain one. The driveway may not have been such a place as to support a reasonable expectation of privacy on the part of the defendants. See Katz, supra, United States v. Fisch, 9 Cir., 1973, 474 F.2d 1071, 1076-1079; Ponce v. Craven, 9 Cir., 1969, 409 F.2d 621, 625; Wattenburg v. United States, 9 Cir. 1969, 388 F.2d 853, 857-858; Cf. Polk v. United States, 9 Cir., 1961, 291 F.2d 230, 232, on remand, N.D.Cal., 1961, 201 F.Supp. 555, afd., 1963, 314 F.2d 837, and, see generally, Note, From Private Places to Personal Privacy; A Post-Katz Study of Fourth Amendment Protection, 43 N.Y. U.L.Rev. 968, 982-86 (1968). However, for reasons that will appear, we need not and do not decide this question.

As we have seen, the entry into the garage was to make an arrest.

At common law, the legality of an arrest entry turned upon the legality of the arrest; if a warrantless arrest was permissible, so was a warrantless entry made for that purpose. See Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 558, 802-06 (1924). For a considerable period of time it was apparently assumed that this doctrine was incorporated into the Fourth Amendment. See Coolidge v. New Hampshire, 1971, 403 U.S. 443, 511-512, n. 1, 91 S.Ct. 2022, 29 L.Ed.2d 564 (opinion of White, J.). However, with the further development of the principle that considerations of individual privacy are at the core of the Fourth Amendment and that the “incident to arrest” and “plain view” doctrines are exceptions to the search warrant requirement, the validity of this assumption began to be questioned. See generally Note, The Neglected Fourth Amendment Problem in Arrest Entries, 23 Stan.L.Rev. 995 (1971). Neither this Court nor the Supreme Court of the United States has yet specifically passed upon the issue, and it is therefore one of first impression in this Circuit. Compare Coolidge v. New Hampshire, supra, 403 U.S. at 473-484, 91 S.Ct. 2022 (opinion of Stewart, J.) with id. at 510-512, 91 S.Ct. 2022 (opinion of White, J.) and id. at 492, 91 S.Ct. 2022 (opinion of Harlan, J.). But see Dorman v. United States, 1970, 140 U.S. App.D.C. 313, 435 F.2d 385, 388-391, holding that a warrant is required for an arrest entry absent a showing of urgent need). We need not, in this case, decide this question.

Assuming that the Fourth Amendment requires a warrant for an arrest, as it does for a search, we conclude that in this case both the search (entry upon the driveway) and the arrest (entry into the garage), fall within a well recognized exception to the warrant requirement. Here there were exigent circumstances justifying both entries without a warrant.

This was not a situation in which probable cause is obtained through normal investigative procedures and the officers can procure a warrant and then go to the suspect’s residence and make a search or an arrest. Here, they were starting from scratch when the Pontiac disappeared, and they had reason to believe that their presence had been detected. They had reason to believe that Barsby had discovered the stake-out before the load car disappeared; he had in fact looked at the officers while making a U-turn in his automobile. In this respect this case differs from United States v. Marshall, 9 Cir., 1973, 488 F.2d 1169 (at 1189-1190). It closely resembles United States v. Rubin, 3 Cir., 1973, 474 F.2d 262. Time was clearly of the essence, and probable cause to believe that the Pontiac was being unloaded in the garage at 11262 Calle Jalapa was obtained during a furious combing of the neighborhood.

At this point, it may have been theoretically possible for the officers to withdraw and obtain a warrant. However, the method of investigation had made it more than probable that the occupants of the garage knew or might at any time learn of their presence. Thus there was a substantial possibility that they would try to escape or destroy the evidence.

These same considerations militated against cordoning off the residence while awaiting a warrant. While such action may be appropriate in many cases, here it would have been equivalent to laying public siege to the premises. This would enable, perhaps provoke, the suspects to take steps to destroy the evidence, set up resistance to an eventual entry, or plan a desperate flight. These factors are especially significant in light of the nature of the area; it was a residential neighborhood, and the residents were already coming out of their houses to observe the events. The benefits to be derived from obtaining a warrant simply would not have justified this additional risk. In short, whatever the general rule regarding warrantless arrest entries, we hold that the need for such an entry in this case arose “under circumstances of necessity which preclude^] recourse to judicial channels.” Note, supra, 23 Stan.L.Rev. at 1005.

For the purposes of this case, what we have said is equally applicable to the search entry and to the arrest entry. Both, in our opinion, were lawful.

' B. The Section 3109 Issue.

The defendants also argue that the entry into the garage was improper because of the agents’ failure to comply with 18 U.S.C. § 3109. That statute provides:

“The officer may break open any outer door or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.”

It is clear that these requirements apply to warrantless arrest entries and to the type of “breaking” that took place in this case, i.e., the opening of an unlocked door. Sabbath v. United States, 1968, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828.

The roots of section 3109, commonly referred to as the “rule of announcement,” extend well back in the history of Anglo-American jurisprudence. See Sabbath v. United States, supra, at p. 589, 88 S.Ct. 1755, Sonnenreich and Ebner, No-Knock and Nonsense, An Alleged Constitutional Problem, 44 St. John’s L.Rev. 626, 627-39 (1970); Blakey, The Rule of Announcement and Unlawful Entry: Miller v. United States and Ker v. California, 112 U.Pa.L.Rev. 499, 500-16 (1964). It is now clear that, to some extent, its requirements have been incorporated into the Fourth Amendment. See Ker v. California, 1963, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. Three interests are said to be served by the rule of announcement: (1) it reduces the potential for violence to both the police officers and the occupants of the house- into which entry is sought; (2) it guards against the needless destruction of private property; and (3) it symbolizes the respect for individual privacy summarized in the adage that “a man’s house is his castle.” See Miller v. United States, 1958, 357 U.S. 301, 307, 313 n. 12, 78 S.Ct. 1190, 1194, 2 L.Ed.2d 1332; Note, Announcement in Police Entries, 80 Yale L.J. 139, 140-41 (1970).

Nonetheless, it has never been suggested that the requirement is an inflexible one; both at common law and in the constitutional context the courts have acknowledged that the interests enumerated above may give way to other considerations. While the limits of these exceptions are by no means clear, they generally stem from the exigencies of law enforcement or involve situations in which compliance with the rule would be mere ritual. See Ker v. California, supra, 374 U.S. at 38-41, 83 S.Ct. 1623 (opinion of Clark, J.); id. at 54-60, 83 S.Ct. 1623 (opinion of Brennan, J.) ; Note, No-Knock and the Constitution: The District of Columbia Court Reform and Criminal Procedure Act of 1970, 55 Minn.L.Rev. 871, 876-86 (1971). In short, “a claim under 18 U.S.C. § 3109 depends upon the particular circumstances surrounding the [entry].” Jones v. United States, 1960, 362 U.S. 257, 272, 80 S.Ct. 725, 737, 4 L.Ed.2d 697. Judged by these standards, we hold that the entry into the garage did not violate the statute.

At the outset, the defendants argue that, notwithstanding the fact that a proper announcement was made at the front door of the house, a second announcement at the garage door was necessary. We disagree. In Cognetta v. United States, 9 Cir., 1963, 313 F.2d 870, we approved an unannounced entry through the rear door of a residence which was made a few seconds after a properly announced entry through the front door. Defendants argue that Cog-netta stands only for the proposition that “if the first of two entries, or any one of two contemporaneous entries was valid, the improper entry did not vitiate the search.” (Br. at 13). However, although split-second timing is a desirable goal in law enforcement, it would make no sense whatsoever to read Cognetta in this way. In view of the purposes served by the rule of announcement, it may be that under some circumstances a prior valid entry makes a subsequent unannounced entry irrelevant, but this simply is not true when the time lapse is a matter of seconds. Indeed, such a situation would make it more likely that the second group of officers would literally “break” in, because, if the occupant were disposed to admit anyone, he would naturally go to the door at which the announcement was made.

In short, the most rational explanation of the Cognetta result is that officers are not required to announce at every place of entry; one proper announcement under section 3109 is sufficient. There may be instances in which the officers’ choice of place to announce is so clearly unreasonable that a second announcement is required at the actual point of entry, but this is not such a case. Here, the announcement was given at the front door of the house, and in the vast majority of eases this will be reasonable. Moreover, that door was no more than twenty-five feet from the garage, and it is highly likely that a proper announcement could be heard by persons in the garage.

However, this conclusion does not end our inquiry. The district judge specifically found that the entry and announcement were simultaneous. The statute provides that the “breaking” of doors is to occur only after announcement and refusal of admittance. See, e.g., United States v. Augello, 3 Cir., 1966, 368 F.2d 1036. If read absolutely, this require-692, 694, vacated on other grounds 1967, 390 U.S. 200, 88 S.Ct. 900, 19 L.Ed.2d ment would invalidate the entry despite the fact that a proper announcement was made.

By and large, both the cases and the literature have concentrated solely upon the “announcement” portion of section 3109; little attention has been devoted to the issue of when “refusal of admittance” is necessary. Such case law as there is, however, suggests that this requirement, like the rule of announcement in general, is a flexible one which is not to be applied mechanically. See generally United States v. Pratter, 7 Cir., 1972, 465 F.2d 227, 231-233 nn. 10-13 (collecting cases). For example, in McClure v. United States, 9 Cir., 1964, 332 F.2d 19, we held that a refusal of admittance is generally to be implied, and that the test is whether “the circumstances were such as would convince a reasonable man that permission to enter had been refused.” Id. at 22. In that case, the officers announced their presence, purpose, and authority, and then heard footsteps which appeared to be “running in the wrong direction.” Although such-facts might not be sufficient to dispense with the rule of announcement altogether, see Ker v. California, supra, 374 U.S. at 57, 83 S.Ct. 1623 (opinion of Brennan, J.), we held that the officers were justified in entering at that point.

Similarly, in United States v. Vargas, 9 Cir., 1971, 436 F.2d 1280, we upheld an entry through an open door when the announcement was made simultaneously with or just prior to entry. We emphasized that section 3109 is primarily aimed at situations involving closed or locked doors, and that the case was not one “of officers sneaking in and going prowling.” Id., at 1281.

The teaching of these cases is that “refusal of admittance” may not be necessary when even a mild showing of exigency is made and that, in situations not involving closed or locked doors, it is relatively unimportant. This view of the requirement is entirely consistent with an analysis based upon the interests purportedly served by the rule of announcement. To the extent that the rule prevents violence, its utility is exhausted when the actual announcement is made. The concern here is that an unannounced intrusion will provoke citizens to exercise their general right to repel intruders by force. See Ker v. California, supra, 374 U.S. at 58, 83 S.Ct. 1623 (opinion of Brennan, J.); Note, supra, 80 Yale L.J. at 140 nn. 5-10, 153 n. 61. However, few persons carry weapons about with them when they are at home. Thus, if announcement is made simultaneously with or shortly before entry it is unlikely that a law-abiding citizen would respond violently or provoke violence on the part of the officers. Indeed, if an occupant is predisposed to resist an entry by police, a substantial delay between announcement and entry could only give him time to prepare.

The interest in preventing the unnecessary destruction of private property is clearly not present when officers enter through an unlocked door. Thus, officers may often be required to wait until permission to enter is either explicitly or constructively denied before actually forcing their way into a residence, when they would be justified in entering only upon announcement if the door were unlocked.

The extent to which the rule of announcement protects privacy has been widely debated. It is at least clear that the rule does not, as one commentator has claimed, “secure to an individual the feeling of control over his own dwelling, upholding the dignity of the citizen against the state.” Note, supra, 80 Yale L.J. at 153. The simple fact is that a homeowner has no right to prevent officers armed with a warrant or proper grounds to make a warrantless entry from entering his home. At the most, the “refusal of admittance” requirement gives him a few moments to decide whether or not he will open the door himself. See, e.g., United States v. Woodring, 9 Cir., 1971, 444 F.2d 749 (permitting entry after a one-minute wait following announcement).

At the most, then, there are two privacy interests which the rule of announcement can be said to promote. First, it protects the homeowner from the outrage of having his “castle” suddenly and violently broken into. See Ker v. California, supra, 374 U.S. at 51-52, 83 S.Ct. 1623 (opinion of Brennan, J., quoting James Otis); Note, Police Practices and the Threatened Destruction of Tangible Evidence, 84 Harv.L.Rev. 1465, 1494 (1971). However, this interest is again served if the entry is nonforceful and a proper announcement is made; little, if anything is gained by permitting the occupant to open the door to an entry that he cannot legally resist.

Second, the rule may prevent embarrassing circumstances resulting from the unexpected exposure of private activities. Note, supra, 84 Harv.L.Rev.. at 1493-94. Cf. McDonald v. United States, 1948, 335 U.S. 451, 460-461, 69 S.Ct. 191, 93 L.Ed. 153 (opinion of Jackson, J.). Requiring officers to wait following their announcement may well permit some persons to put their affairs in order. Nonetheless, the “refusal of admittance” requirement would not prevent the interruption of intimate activities, and the protection thus afforded is rather small. See United States v. Woodring, supra. In balancing the interests involved, this relatively small gain in privacy does not justify substantial limitations upon the otherwise proper activities of law enforcement officials. It is therefore reasonable to permit entry upon announcement only, when there is some indication of exigent circumstances.

In sum, both the case law and analysis of the policy bases of the rule of announcement support the following standards regarding “refusal of admittance” once a proper section 3109 announcement has been made: entry is permissible simultaneously with or shortly after announcement if there is a likelihood that the occupants will attempt to escape, resist, destroy evidence, or harm someone within and if a non-forcible entry is possible; more specific inferences of exigency are necessary if entry may be obtained only by the physical destruction of property; an explicit refusal of admittance or lapse of a significant amount of time is necessary if the officers have no facts indicating exigency.

Judged by these standards, entry upon announcement was permissible in this case. The officers did not have to force their way into the garage; the door was unlocked and they had merely to raise it. Moreover, the elements of hot pursuit, including the fact that the officers could well believe that the occupants of the garage knew of the officers’ presence, made attempted flight likely. We therefore hold that the entry in this case complied with 18 U.S.C. § 3109.

Affirmed.

      . Barsby was later acquitted of charges similar to those brought against Bustamante and Garcia, but this fact is irrelevant to determination of the Fourth Amendment issues.

      . The Government argues that the defendants lack standing to challenge the search. This argument is frivolous and we do not pause to consider it.

      . It is well established that illegal entries vitiate subsequent searches or seizures, even if the evidence is in plain view after the entry. See Coolidge v. New Hampshire, 1971, 403 U.S. 443, 464-473, 91 S.Ct. 2022, 29 L.Ed.2d 564; United States v. Cisneros, 9 Cir., 1971, 448 F.2d 298, 303, note 6.

      . We have no doubt that the officers were making a good faith attempt to locate the car; they were not creating exigent circumstances. A different case would he presented if there were the possibility of abuse. As we said in Davis v. United States, 9 Cir., 1964, 327 F.2d 301, 306:
      “On this excursion of law enforcement officers across the quagmire of search and seizure without warrants of any kind, only a thin chain of unusual circumstances upon which beamed the most benign smile of the Goddess of Fortune has enabled them to escape safely and legally with their usually forbidden fruit.”

      . The Government does not argue that the garage was not part of the house for purposes of section 3109, and we assume that it was. Cf. United States v. Mullin, 4 Cir., 1964, 329 F.2d 295, 298 (statute supplied to invalidate entry into smokehouse which was within the curtilage).

      . For purposes of clarity, this opinion will take the” “rule of announcement” to include all of the elements of 18 U.S.C. § 3109. References to “announcement” will mean notification of authority and purpose only; it will not include the “refusal of admittance” requirement, discussed infra.

      . The agent testified that he believed that contraband was secreted in the house, and that it was in fact his intention to enter and make an arrest. Despite the fact that the primary area of interest was the garage, this belief was clearly reasonable.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Orlando Vasquez CARRION, Defendant, Appellant.
    No. 72-4243.
    United States Court of Appeals, First Circuit.
    Heard Nov. 6, 1973.
    Decided Nov 29, 1973.
    Certiorari Denied April 1, 1974.
    See 94 S.Ct. 1613.

      Edwin P. Whittemore, Boston, Mass., by appointment of the Court, with whom Robert M. Cove, was on brief, for defendant, appellant.
    Robert B. Collins, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
    Before COFFIN, Chief Judge, ALD-RICH and McENTEE, Circuit Judges.
   PER CURIAM.

Appellant, convicted of knowingly aiding and abetting the distribution of heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, contends that his Fifth and Sixth Amendment rights were abridged during trial because (1) the court allowed into evidence impermissible and prejudicial hearsay, (2) appellant was denied effective assistance of counsel, and (3) the court refused to appoint an interpreter for him.

The first claim is clearly lacking in merit. Even assuming that the statements were not admissible under the theory of joint venture, the court granted a motion to strike them and gave careful instructions to disregard them. Therefore, we think it unlikely that the jury relied upon the questioned extra-judicial statements in determining appellant’s guilt, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). We also find the second claim to be frivolous, since counsel’s failure to call an alibi witness to the stand may have been motivated by strategic considerations. Appellant’s third contention, however, deserves more attention, particularly in light of scarce judicial authority on the right to a court-appointed interpreter and the possible confusion which might attend this subject in the future.

Appellant is a foreign-born national with a limited ability to speak and comprehend English. He claims that, although he admitted to the court some ability to communicate and understand, his counsel’s assertion at the start of the trial of the possibility of a “problem of communication” should have prompted the court to hold a special hearing to determine the extent of the problem. As evidence of his difficulty with the language, appellant points to several instances during his own testimony where questions had to be repeated or where his responses were so unclear as to require that he rephrase them. On at least one occasion the court indicated that there was apparently a “language barrier”.

The necessity for an interpreter to translate from a defendant’s native language into English when the defendant is on the stand, and from English into the defendant's native language when others are testifying, has been elevated to a right when the defendant is indigent and has obvious difficulty with the language, Negron v. New York, 310 F.Supp. 1304 (E.D.N.Y.1970), aff'd, 434 F.2d 386 (2d Cir. 1970); cf. Gonzalez v. People of Virgin Islands, 109 F.2d 215 (3d Cir. 1940). Clearly, the right to confront witnesses would be meaningless if the accused could not understand their testimony, and the effectiveness of cross-examination would be severely hampered. Terry v. State, 21 Ala.App. 100, 105 So. 386, 387 (1925); cf. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1962). If the defendant takes the stand in his own behalf, but has an imperfect command of English, there exists'the additional danger that he will either misunderstand crucial questions or that the jury will misconstrue crucial responses. The right to an interpreter rests most fundamentally, however, on the notion that no defendant should face the Kafkaesque spectre of an incomprehensible ritual which may terminate in punishment.

Yet how high must the language barrier rise before a defendant has a right to an interpreter? It is well settled that there is no right to an interpreter if the foreign-born defendant speaks fluent English and is “completely aware of all the proceedings”. Cervantes v. Cox, 350 F.2d 855 (10th Cir. 1965). The status of the right becomes less certain, however, where, as in the present case, the defendant has some ability to understand and communicate, but clearly has difficulty.

Because the determination is likely to hinge upon various factors, including the complexity of the issues and testimony presented during trial and the language ability of the defendant’s counsel, considerations of judicial economy would dictate that the trial court, coming into direct contact with the defendant, be granted wide discretion in determining whether an interpreter is necessary. See Perovich v. United States, 205 U.S. 86, 91, 27 S.Ct. 456, 51 L.Ed. 722 (1907); United States v. Barrios, 457 F.2d 680 (9th Cir. 1972); United States v. Sosa, 379 F.2d 525, 527 (7th Cir. 1967), cert. denied, 389 U.S. 845, 88 S.Ct. 94, 19 L.Ed.2d 111 (1967). It would be a fruitless and frustrating exercise for the appellate court to have to infer, language difficulty from every faltering, repetitious bit of testimony in the record. But precisely because the trial court is entrusted with discretion, it should make unmistakably clear to a defendant who may have a language difficulty that he has a right to a court-appointed interpreter if the court determines that one is needed, and, whenever put on notice that there may be some significant language difficulty, the court should make such a determination of need.

Although the trial court in the present case did not hold a formal hearing on the question whether the appellant required a translator, it was obviously sensitive to the appellant’s plight in that it did grant pretrial motions made by the appellant’s two co-defendants, each asking for an interpreter during the proceedings. Thus, a procedure was available for the appellant to allege and show a language difficulty before trial commenced. Moreover, the court specifically asked counsel whether the appellant was able to communicate and understand English, to which appellant’s counsel responded in the affirmative. Finally, the court told the appellant that if, at any point in the proceedings, there was something he did not understand, he need only raise his hand and the testimony would be repeated. We are not prepared to hold that the appellant had a constitutional right to any more than this.

Affirmed.

       The court refused appellant’s request that one interpreter sit between appellant and a co-defendant on the reasonable ground that “ [i] t doesn’t work well if an interpreter has to translate for two people.” In a situation where two or more parties require the services of an interpreter in the same language, it would seem to us advisable to consider the alternative of having but one interpreter and pacing the examination of witnesses to allow time for the translation into the parties’ own tongue. We say this not out of a sense of economy but from a recognition of the desirability of avoiding any possibility that several parties receive differing versions of the testimony.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. William F. RAY, Defendant-Appellant.
    No. 73-1430.
    United States Court of Appeals, Tenth Circuit.
    Submitted Nov. 14, 1973.
    Decided Nov. 26, 1973.

      William R. Burkett, U. S. Atty., and ■O. B. Johnston, III, Asst. U. S. Atty., for plaintiff-appellee.
    Daniel Seitsinger, Oklahoma City, Okl., for defendant-appellant.
    Before HILL, BARRETT and DOYLE, Circuit Judges.
   PER CURIAM.

Appellant appeals from his conviction of a violation of the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq., and the regulations enacted thereunder. Specifically, he appeals from his conviction for failure to tag nine game birds as required by 50 C.F.R. § 10.36. The matter was tried before a United States Magistrate sitting without a jury and the conviction was affirmed on appeal to the district court.

The facts are not in dispute: Appellant and two hunting companions embarked upon a duck hunting trip in and around the Skip Out Lake area in Roger Mills County, Oklahoma on December 9, 1972. They established a camp site and during the following week of hunting killed approximately 37 ducks. They cleaned and dressed 10 of the ducks and left the remaining 27 ducks at the campsite uncleaned in a plastic bag. None of the ducks was tagged.

On December 15, 1972 Ranger Ron Cunningham of the Oklahoma Wildlife Commission saw appellant and his two companions leaving the area. He had had contact with them earlier in the week with respect to a possible hunting violation, and he therefore decided to check their former campsite. He proceeded to the campsite where he discovered the 27 ducks which had been left behind. Ranger Cunningham shortly thereafter contacted Game Management Agent LaVerne Broyles of the United States Department of Interior Bureau of Sport, Fisheries, and Wildlife with respect to a possible violation of the Migratory Bird Treaty Act. Agent Broyles investigated the matter, and appellant and his two companions were subsequently charged and convicted of failure to tag migratory game birds as required by 50 C.F.R. § 10.36. A charge of wanton waste of migratory game birds in violation of 50 C.F.R. § 10.25 was dismissed prior to trial. Appellant’s two companions have not appealed.

On appeal, appellant essentially contends that (1) the regulation in issue has been expanded by judicial construction to make criminal a course of conduct not otherwise proscribed; (2) the complaint fails to charge an offense; (3) the court erred in excluding certain evidence; (4) the regulation violates the Fifth Amendment due process clause since criminal intent is not an element of the offense; and (5) the regulation violates the Fifth Amendment self incrimination clause since it forces a hunter to provide potentially incriminating information.

Appellant’s first contention involves basically a question of statutory construction.

16 U.S.C. § 703 makes it a criminal offense to hunt migratory game birds under any circumstances. 16 U.S.C. § 704 qualifies this absolute prohibition by allowing such hunting but only in accordance with the specific regulations promulgated by the Secretary of the Interior for the hunting of such birds. The regulation with which we are concerned is set forth in 50 C.F.R. § 10.36 and reads as follows:

“§ 10.36 Tagging requirement.
No person shall put or leave any migratory game birds at any place (other than at his personal abode), or in the custody of another person for picking, cleaning, processing, shipping, transportation, or storage (including temporary storage), or for the purpose of having taxidermy services performed, unless such birds have a tag attached, signed by the hunter, stating his address, the total number and species of birds, and the date such birds were killed. Migratory game birds being transported in any vehicle as the personal baggage of the possessor shall not be considered as being in storage or temporary storage.”

Appellant contends that the regulation makes it a crime to fail to tag a game bird only if the bird is left with someone other than the hunter for one of the specific purposes set forth in the regulation. Since the untagged birds here were left at the campsite, he argues that to include such a course of conduct within the activities prohibited by the regulation is a judicial enlargement of the regulation which violates the due process clause. Appellant’s argument is rooted in the principle that one cannot be held criminally responsible for his conduct unless he has prior reasonable notice that his contemplated course of conduct is proscribed.

We think that the regulation clearly covers appellant’s conduct and that he had adequate notice that such conduct was possibly proscribed.

It is a cardinal tenet of statutory construction that statutes are to be construed to effectuate the intent of the enacting body, and that in construing a statute, the court first looks to the language of the statute. Where the langugage is clear and the purpose appears with reasonable certainty, there is no need to resort to rules of construction to ascertain its meaning. This same rule applies in construing administrative regulations such as the one in question here. Rucker v. Wabash Railroad Co., 418 F.2d 146 (7th Cir. 1969).

Applying this rule to the regulation before us, we think the regulation clearly requires a hunter to tag his prey in four situations: When he leaves it (1) at any place other than his home; (2) in the custody of another for picking, cleaning, etc.; (3) for storage; and (4) for the purpose of having taxidermy services performed. These four situations are clearly set forth in- the regulation and each is separated with a comma and joined to the preceding requirement by the disjunctive conjunction or, i. e., the conjunction or indicates four alternative situations in which tagging is required.

As noted previously, the hunting of migratory game birds is by statute absolutely prohibited except in accordance with the regulations established by the Secretary of Interior. Hence, we think this absolute prohibition provided appellant with adequate notice that he hunted at his peril and that his conduct was possibly proscribed; he was engaging in a privileged activity and it was encum-bent upon him to design his conduct such that it would not breach that privilege.

Appellant’s second contention that the complaint fails to charge an offense since it does not charge that the birds were left for a purpose is, in view of the preceding, without merit. The regulation clearly prohibits the leaving of a game bird at any place other than the home without affixing the required tag, and no specific purpose is necessary to charge an offense.

At trial, appellant attempted to elicit from various law enforcement officials their opinions as to the circumstances under which the regulation requires the tagging of game birds, and whether they thought appellant had violated the regulation in issue. Appellant contends that the court erroneously sustained appellee’s objections to all such questions. It is, of course, well settled that the relevancy of evidence offered at trial and the admission and exclusion of such evidence is within the sound discretion of the trial court, and the court’s judgment on such matters will not be impugned on appeal unless it appears that in allowing or excluding such evidence the court abused its discretion. United States v. Acree, 466 F.2d 1114 (10th Cir. 1972), cert. denied 410 U.S. 913, 93 S.Ct. 962, 35 L.Ed.2d 278 (1973); United States v. Brumley, 466 F.2d 911 (10th Cir. 1972); United States v. Miller, 460 F.2d 582 (10th Cir. 1972); United States v. Twilligear, 460 F.2d 79 (10th Cir. 1972); Hale v. United States, 406 F.2d 476 (10th Cir. 1969), cert. denied 395 U.S. 977, 89 S.Ct. 2129, 23 L. Ed. 765 (1969). The questions in issue here called for conclusions of law and we cannot say the lower court abused its discretion in sustaining appellee's objections, particularly since no offer of proof was made which would provide a record upon which we could review the lower court’s decisions and which, for example, might justify such questions as going to establish prior regulatory construction of the regulation in issue.

Appellant strongly argues that the regulation in question violates the Fifth Amendment due process clause since it does not require proof that the actor undertook his course of conduct with criminal intent. We think this contention is answered by Judge (now Justice) Black-mun in Holdridge v. United States, 282 F.2d 302 (8th Cir. 1960), wherein he stated:

“From these eases emerges the proposition' that where a federal criminal statute omits mention of intent and where it seems to involve what is basically a matter of policy, where the standard imposed is, under the circumstances, reasonable and adherence thereto properly expected of a person, where the penalty is relatively small, where conviction does not gravely besmirch, where the statutory clime is not one taken over from the common law, and where congressional purpose is supporting, the statute can be construed as one not requiring criminal intent. The elimination of this element is then not violative of the due process clause, (citations omitted).” Holderidge v. United States, supra at 310.

See also United States v. Olson, 41 F. Supp. 433, Western District Ky., 1941; United States v. Reese, 27 F.Supp. 833, Western District Tenn., 1939.

We think this principle is equally applicable to an administrative regulation. Here, the regulation was enacted pursuant to specific statutory authorization and is encompassed within a set of regulations promulgated to enact the broad policy of protecting an important natural resource, migratory game birds. Violation of the regulation is a misdemeanor, 16 U.S.C. § 707, and a conviction does not gravely besmirch. Lack of a requirement of criminal intent does not render the regulation void.

Finally, appellant contends that the regulation violates the Fifth Amendment self incrimination clause in that the purpose of the regulation is to force the hunter to provide incriminating information which might form the basis for prosecution under the Migratory Bird Treaty Act. This contention was not raised in the lower courts and hence is not properly before us on appeal. Simpson v. Union Oil Company of California, 411 F.2d 897 (9th Cir. 1969), rev’d on other grounds 396 U.S. 13, 90 S.Ct. 30, 24 L.Ed.2d 13 (1969); Eureka-Carlisle Co. v. Rottman, 398 F.2d 1015 (10th Cir. 1968); Cox v. City of Freeman, Mo., 321 F.2d 887 (8th Cir. 1963); Justheim Petroleum Co. v. Hammond, 227 F.2d 629 (10th Cir. 1955). Further, we do not perceive a serious constitutional question lurking in the background such as would warrant consideration of the issue in view of the fact that compliance with the regulation is not, as was true in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L. Ed.2d 57 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L. Ed.2d 906 (1967); and Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1967), a per se incriminating act, and since the regulation was promulgated in an “essentially non-criminal regulatory area” and is not “directed to a selective group inherently suspect of criminal activities.”

Affirmed.

      . See e. g., Palmer v. City of Euclid, 402 U.S. 544. 91 S.Ct. 1563, 29 L.Ed.2d 98 (1970) ; United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808. 98 L.Ed. 989 (1954).

      . Cf. New Mexico Sav. and L. Ass’n. v. United States Fidelity and G. Co., 454 F.2d 328 (10th Cir. 1972) ; Whitehead v. Salyer, 346 F.2d 207 (10th Cir. 1965).


author: ROSS, Circuit Judge.

text:
    Gary GUILLARD, Plaintiff, v. NIAGARA MACHINE & TOOL WORKS, Defendant and Third Party Plaintiff-Appellant, v. GAGE TOOL COMPANY, INC., Third Party Defendant-Appellee.
    No. 73-1294.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 18, 1973.
    Decided Dec. 5, 1973.

      Greer E. Lockhart, Minneapolis, Minn., for appellant.
    O. C. Adamson, II, Minneapolis, Minn., for appellee.
    Before HEANEY, ROSS and STEPHENSON, Circuit Judges.
   ROSS, Circuit Judge.

Gary Guillard brought an action to recover damages for bodily injuries which he received while operating a power press manufactured by Niagara Machine & Tool Works (Niagara). At the time of the accident, Guillard was within the course and scope of his employment at Gage Tool Company, Inc. (Gage), a corporation engaged in the business of fabricating metal products. The power press responsible for inflicting the injuries was an open back, E150, inclinable press manufactured by Niagara and shipped to Gage. It came equipped with palm (hand-operated) buttons which are so located that when an operator is actuating the machine his hands are not in the path of the ram of the press.

Gage, upon receipt of the press, disconnected the palm buttons and connected a foot switch. The foot switch was not provided by Niagara but a receptacle was built into the machine it manufactured to permit the installation of the foot switch. No guards were added by Gage to prevent operators’ hands from wandering under the ram of the press. The machine was used for a punching operation with dies which were not fastened to the press so that it was necessary for the operator to insert his hands under the ram to adjust the dies after each punching operation.

While Guillard was operating the press and while he had his hands in the adjusting position, the press was activated and the ram descended on both of his hands. The accident resulted in the amputation of Guillard’s left hand and part of his right hand. Guillard was paid compensation and medical benefits in accordance with the Workmen’s Compensation Act of the State of Minnesota.

Thereafter he commenced this action against Niagara claiming:

1. that the press was defective when designed, manufactured and marketed by the defendant in that it was unguarded, capable of being operated with a foot pedal without a guard and there were neither adequate instructions for use nor warning of the danger;
2. that the defendant impliedly and expressly warranted the press to be of merchantable quality and reasonably fit for the reasonably foreseeable uses;
3. that Niagara owed plaintiff a duty of care in the design, manufacture, inspection, testing, advertising and sale of the press; and

4. that Niagara was guilty of wanton and reckless misconduct in that it:

a) knew that adequate guarding of the danger zone of its press was required in order to prevent serious injury to operators;
b) had the ability to guard, instruct or warn against the dangerous condition of the press;
c) had access to standards to assist it in providing adequate guarding, instruction or warning;
d) knew or should have reasonably foreseeably known that it was foolhardy not to guard, instruct or warn;
e) wantonly and recklessly failed to guard, instruct or warn.

Niagara then impleaded Gage as a third party defendant for indemnity or, in the alternative, contribution, claiming that Gage was guilty of wanton and reckless misconduct in that it:

1. knew that adequate guarding of the danger zone of the press was required in order to prevent serious injury to operators;
2. had the ability to guard, instruct or warn against the dangerous condition of the press;
3. had access to standards to assist it in providing adequate guarding, instruction or warning;
4. knew or should have reasonably foreseeably known that it was foolhardy not to guard, instruct or warn;
5. wantonly and recklessly did fail to guard, instruct or warn.

Thereupon Niagara sought indemnity or, in the alternative, contribution in accordance with a determination of the percentage negligence as between the parties.

Gage moved for dismissal of the third party complaint on the basis that the Minnesota Workmen’s Compensation Act in effect when the cause of action arose barred any claim for negligence under the facts of this case, and thus, indemnification against an employer who participates in the insurance program. The district court granted the motion and entered final judgment on the order pursuant to Federal Rule of Civil Procedure 54(b). Niagara appeals from that order dismissing its third party claim against Gage.

Contribution and indemnity are variant remedies used to secure restitution. Although similar in nature, they differ in the relief afforded. Contribution rests upon common liability, not joint negligence or joint tort. Merrimac Mining Co. v. Gross, 216 Minn. 244, 248-249, 12 N.W.2d 506, 509 (1943); Parten v. First Nat. Bank & Trust Co., 204 Minn. 200, 201, 283 N.W. 408, 412 (1938); Restatement of Restitution § 81 (1937). Common liability exists when two or more actors are liable to an injured party for the same damages, even though their liability may rest on different grounds. Farmers Insurance Exchange v. Village of Hewitt, 274 Minn. 246, 249, 143 N.W.2d 230, 233 (1966); Koenigs v. Travis, 246 Minn. 466, 472, 75 N.W.2d 478, 483 (1956); Duluth, M. & N. Ry. v. McCarthy, 183 Minn. 414, 236 N.W. 766, 768 (1931). Thus, if, as a matter of law, the concurring negligence of the party from whom contribution is sought gives the injured party no cause of action against him, the claimant cannot recover contribution, even though such concurring negligence was a proximate cause of the injury. American Auto Ins. Co. v. Molling, 239 Minn. 74, 57 N.W.2d 847, 851 (1953). See also Hendrickson v. Minnesota Power & Light Co., 258 Minn. 368, 371, 104 N.W.2d 843, 847 (1960); Koenigs v. Travis, supra, 246 Minn, at 472, 75 N.W.2d at 483; London Guarantee & Accident Co. v. Smith, 242 Minn. 211, 64 N.W.2d 781, 783 (1954). The right of contribution does not exist in such circumstances because there is no common liability.

The Minnesota Workmen’s Compensation Act is intended to control only the rights between employer and employee and at the time this cause of action arose, did not by its terms prevent contribution or indemnity where appropriate. Hendrickson v. Minnesota Power & Light Co., supra; Lunderberg v. Bierman, 241 Minn. 349, 63 N.W.2d 355, 359 (1954); Gleason v. Geary, 214 Minn. 499, 8 N.W.2d 808, 813 (1943). The relevant section in this respect is Minn.Stat. § 176.031 (1969) which, at the time of the accident, provided:

The liability of an employer prescribed by this chapter is exclusive and in the place of any other liability to such employe, his personal representative, surviving spouse, parent, any child, dependent, next of kin, or other person entitled to recover damages on account of such injury or death. .

Thus, the Act affected the right to contribution where the concurrent negligence of the employer and the third party causes injury to an employee. Since workmen’s compensation statutes provide that the obligations thereunder are the only liability of the employer to the employee, there is no common liability involving the employer and a third party in such situations; and, therefore, there is no ground for allowing contribution. Hendrickson v. Minnesota Power & Light Co., supra, 258 Minn, at 374, 104 N.W.2d at 849.

Indemnity is the remedy securing the right of a person to recover reimbursement from another for the discharge of a liability which, as between them, should have been discharged by the other. Hanson v. Bailey, 249 Minn, 495, 505, 83 N.W.2d 252, 260 (1957); Restatement of Restitution § 76 (1937). It is appropriate where one party has a primary or greater liability or duty which justly requires him to bear the whole of the burden as between the parties. Hendrickson v. Minnesota Power & Light Co., supra, 258 Minn, at 370, 104 N.W.2d at 847. Hendrickson held that the Workmen’s Compensation Act of Minnesota does not preclude the recovery of indemnity from an employer by a third party. However, the circumstances of the recovery of indemnity were limited to five situations:

(1) Where the one seeking indemnity has only a derivative or vicarious liability for damage caused by the one sought to be charged.
(2) Where the one seeking indemnity has incurred liability by action at the direction, in the interest of, and in reliance upon the one sought to be charged.
(3) Where the one seeking indemnity has incurred liability because of a breach of duty owed to him by the one sought to be charged.
(4) Where the one seeking indemnity has incurred liability merely because of failure, even though negligent, to discover or prevent the misconduct of the one sought to be charged.
(5) Where there is an express contract between the parties containing an explicit undertaking to reimburse for liability of the character involved.

Id. at 848.

In Haney v. International Harvester Co., 294 Minn. 375, 201 N.W.2d 140 (1972), a factual situation similar to the one which faces us now was before the Minnesota Supreme Court. The sole issue noted on appeal in that case was whether the third-party action against plaintiff’s employer should have been dismissed where the plaintiff-employee, having received workmen’s compensation benefits, sued the defendant for common law negligence and defendant brought the employer in as a third party for contribution or indemnity.

The Minnesota Court recognized that under the rationale of Hendrickson, neither contribution nor indemnity were applicable. Contribution would not apply because there was no common liability between the employer and the manufacturer, the employer’s liability to the employee having been extinguished by payment of workmen’s compensation. Indemnity would not apply because the defendant’s situation did not fit any of the five situations specified in Hen-drickson. The court then reasoned that an obvious injustice may be done to a third party tortfeasor in cases similar to the one which they were considering. The court concluded that since there may be a due process violation when a third-party tortfeasor’s right to indemnity is extinguished by the workmen’s compensation laws without providing him a reasonable substitute for his right, they should reconsider granting indemnification where there is a great disparity in the degree of fault of the parties. However, the court indicated a reluctance to decide the important issues presented by the case without a factual setting. Accordingly, the court held that, because of the question posed, they preferred to have a trial, which would include a determination of percentage of negligence as between the employee, the employer and the manufacturer. The trial court was directed to pass upon all issues raised in new trial including all the issues discussed in the opinion. The order of the district court dismissing the third-party action by the manufacturer against the employer was reversed but without prejudice to a renewal of a motion for a similar order after the trial and after a final determination of the Minnesota Supreme Court. Prior to retrial, however, the case was settled.

We believe that the Minnesota Supreme Court indicated in Haney that they intended to change the Minnesota rule that precluded indemnity from an employer who was a joint tortfeasor, but whose common liability was extinguished by the payment of workmen’s compensation. However, while the Minnesota court may have signaled that a change in Minnesota law was imminent, nevertheless it did not indicate the substantive scope of that change. Thus, we are faced not with a question of unclear state law where there is ambivalent precedent in the state courts; rather, we are faced with a problem of nonfor-mulated state law.

We realize that, in a diversity case, it is the duty of the federal courts, when faced with a legal question of state law, to ascertain and apply the law of the state, that is, to determine what the highest state court would declare state law to be if the case were before it. Difficulties of ascertaining what the state court may hereafter determine the state law to be, do not in themselves afford a sufficient ground for a federal court to decline to exercise its jurisdiction to decide a case which is properly brought to it for decision. Meredith v. Winter Haven, 320 U.S. 228, 234, 64 S. Ct. 7, 88 L.Ed. 9 (1943).

However, during the last session of the Minnesota state legislature, a law was passed which may provide an appropriate vehicle to the resolution of the problem with which we are faced. Laws 1973, chapter 25. That act was codified in Minn.Stat. § 480.061 and provides:

The supreme court may answer questions of law certified to it by the supreme court of the United States, a court of appeals of the United States, a United States district court or the highest appellate court or the intermediate appellate court of any other state, when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.

At the time the trial court dismissed the third-party complaint this procedure was not available to the district court since the effective date of the statute was August 1, 1973, and the trial court made its determination in March, 1973. The certification procedure thereby authorized is similar to one that exists in Florida and which the Supreme Court has approved. Clay v. Sun Insurance Office, 377 U.S. 179, 180, 84 S.Ct. 1197, 12 L.Ed.2d 229 (1964) ; Dresner v. Tallahassee, 375 U.S. 136, 84 S.Ct. 235, 11 L.Ed.2d 208 (1963); Aldrich v. Aldrich, 375 U.S. 75, 84 S.Ct. 184, 11 L.Ed.2d 141 (1963). This procedure has been repeatedly employed, not without some criticism, by the Fifth Circuit with respect to questions of Florida law. Allen v. Estate of Carman, 446 F.2d 1276 (5th Cir. 1971); Boyd v. Bowman, 443 F.2d 848 (5th Cir. 1971); Martinez v. Rodriquez, 394 F.2d 156 (5th Cir. 1968); Life Insurance Co. of Va. v. Shifflet, 370 F.2d 555 (5th Cir. 1967); Hopkins v. Lockheed Aircraft Corp., 358 F.2d 347 (5th Cir. 1966); Green v. American Tobacco Co., 304 F.2d 70 (5th Cir. 1962).

We recognize the dangers inherent in perfunctory reliance upon such a procedure to resolve difficult questions of state law. However, certification in this case does not present the same infirmities. Haney did not change the substantive law in Minnesota. It simply indicated a willingness to change that law. We are reluctant to define the perimeters of that change when the Minnesota court itself did not do so on an abbreviated record. Thus, we remand to the district court with directions to permit the third party claim. If a verdict for the plaintiff is found, the triers of fact shall also pass upon all questions relevant to the third party claim including a determination of percentage of negligence as between Guillard, Niagara and Gage. After such findings are made, but before entry of judgment, the district court is directed to certify the question of law to the Minnesota Supreme Court pursuant to Minn.Stat. § 480.061, unless those findings include a determination that Gage was not negligent or that its negligence did not contribute to the accident.

■Reversed and remanded for further proceedings consistent with the views expressed in this opinion.

      . The present Minnesota statute provides that an employer shall not be liable to a third party for indemnification arising out of an employee's injuries unless a written agreement to that effect exists. Minn.Stat. § 176.061, subd. 10 (1971). That statute, however, is not applicable in this case. This action arises out of an incident which occurred in June, 1966, and the statute providing for indemnification only upon written agreement went into effect September 1, 1969.


author: HILL, Circuit Judge.

text:
    Oscar RIOS, Assignee, Plaintiff-Appellant, v. CESSNA FINANCE CORPORATION, Defendant-Appellee.
    No. 73-1333.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Oct. 17, 1973.
    Decided Dec. 6, 1973.

      Anthony F. Avallone, Las Cruces, N. M., for plaintiff-appellant.
    Walter R. Parr, Las Cruces, N. M. (James R. Crouch, Las Cruces, N. M., on the brief), for defendant-appellee.
    Before HILL, McWILLIAMS and BARRETT, Circuit Judges.
   HILL, Circuit Judge.

The matter before the Court is an appeal from a summary judgment granted the defendant in an action for conversion and deprivation of property rights under 42 U.S.C. § 1983.

Mesilla Valley Flying Service is a New Mexico corporation engaged in an airport business near Las Cruces, in Dona Ana County, New Mexico. In 1966 it purchased seven airplanes and financed them through Cessna Finance Corporation, a Kansas corporation. Cessna Finance loaned $89,687.40 to the Flying Service which, in return, executed installment notes, chattel mortgages and guarantee agreements. The chattel mortgages gave Cessna Finance the right to possession of the airplanes upon a default in payments by the Flying Service. The Flying Service paid $47,784.50 on the notes and then defaulted.

On July 9, 1968, Cessna Finance filed a complaint, affidavit and bond in the Dona Ana County District Court, and obtained a writ of replevin. The sheriff of Dona Ana County executed the writ the same day, seizing the airplanes. The Flying Service answered and alleged a counterclaim for wrongful replevin. Both parties moved for summary judgment, which was granted in favor of Cessna Finance. The Flying Service appealed, and the New Mexico Supreme Court affirmed the decision. Cessna Fin. Corp. v. Mesilla Valley Flying Serv., 81 N.M. 10, 462 P.2d 144 (1969), cert. denied, 397 U.S. 1076, 90 S.Ct. 1521, 25 L.Ed.2d 811 (1970).

In September, 1970, the president of the Flying Service executed an assignment for the benefit of creditors to Ryan. Ryan subsequently instituted an action in the United States District Court, District of New Mexico, seeking damages against Cessna Finance. This action was based on two claims. The first was for conversion arising out of the alleged wrongful replevin, in which the New Mexico replevin statutes were claimed to be unconstitutional. The second claim sought damages for an alleged deprivation of constitutional rights under 42 U.S.C. § 1983.

Both parties filed motions for summary judgment, and the trial court granted judgment in favor of Cessna Finance. The trial court held Ryan’s claim for conversion was barred by the doctrine of res judicata and that the claim under 42 U.S.C. § 1983 failed to state a claim upon which relief could be granted because it was a claim for the vindication of a property right and not of a personal right.

On appeal to this Court, the judgment was vacated and the cause remanded to the district court for consideration in light of Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), and Lynch v. Household Fin. Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972). Ryan v. Cessna Fin. Corp., No. 71-1762 (July 17, 1972).

Both parties again moved for summary judgment and the trial court again granted the motion in favor of Cessna Finance. In a memorandum opinion, the trial court held Ryan’s conversion action was barred by the doctrine of res judi-cata. The trial court also held Ryan’s claim under 42 U.S.C. § 1983 could not be sustained because good faith compliance with a statute subsequently declared to be unconstitutional negates any claim for damages under § 1983.

Rios, substituted for Ryan as successor assignee, appeals the decision to this Court. We affirm.

Rios first contends it was error for the trial court to grant summary judgment for Cessna Finance because the conversion action is not barred by the doctrine of res judicata. His position is that the state court judgment resolved only the issue of Cessna Finance’s money damages, and that a state court judgment is an estoppel only as to fact questions in issue in that case which were essential to a decision thereon. We cannot agree.

The counterclaim in the state court by the Flying Service was a claim for a wrongful replevin, based on N.M. Stat.Ann, § 22-17-12 (1953). The statute’s purpose is to settle in one suit all questions that may arise out of the unlawful taking or detention of property. McCallister v. M-A-C Fin. Co., 332 F.2d 633 (10th Cir. 1964). The damages issue must be litigated in the replevin action or be barred thereafter. Id. Although this is an interpretation of state law by a federal district court, the resident judge’s views on the unsettled laws of his state are persuasive and ordinarily accepted. Sade v. Northern Natural Gas Co., 483 F.2d 230 (10th Cir. 1973). For this reason we shall adopt this interpretation of the replevin statute.

Rios argues, however, that because the claim is not for wrongful replevin but for a conversion that began with replevin, a distinction exists which avoids the interpretation given the replevin statute in McCallister. We can find no such distinction. To constitute conversion in New Mexico there must be proof of a wrongful detention amounting to a repudiation of the owner’s rights, or the exercise of a dominion over the property which is inconsistent with the owner’s rights. Molybdenum Corp. v. Brazos Eng’r Co., 81 N.M. 708, 472 P.2d 971 (1970). We believe that the conversion claim for the wrongful detention of property is barred by the doctrine of res judicata because of Mc-Callister.

Rios next contends 42 U.S.C. § 1983 establishes a claim for violation of property rights. Section 1983 provides:

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 ....

Because there is no distinction between the protection of personal and property rights under § 1983, deprivation of a property right is actionable. Lynch v. Household Fin. Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972). However, other facts present in this ease negate a cause of action. Cessna Finance brought the original replevin action before the replevin statutes, insofar as they provided for a prejudgment taking of property without notice and a hearing, were declared unconstitutional in Montoya v. Blackhurst, 84 N.M. 91, 500 P.2d 176 (1972). See also Sniadach v. Family Fin. Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). A statute is presumed to be' constitutional until struck down as unconstitutional. Cessna Finance followed the statutory procedure in bringing its replevin action. We therefore hold that § 1983 is not applicable because damages are not collectible in a civil right action against one who followed a statutory procedure presumed to be constitutional. Baxter v. Birkins, 311 F.Supp. 222 (D.C.Colo. 1970). And although Rios now questions the good faith of Cessna Finance in proceeding under the replevin laws of New Mexico, we believe no factual issue on the question exists.

Affirmed.


author: PER CURIAM:

text:
    James L. McKINNEY, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee.
    No. 73-1663
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 11, 1974.
    Rehearing Denied Feb. 7, 1974.

      Natalie Baskin, Miami, Fla. (Court-appointed), for petitioner-appellant.
    Barry Scott Richard, William L. Rogers, Asst. Attys. Gen., Miami, Fla., for respondent-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

Petitioner James L. McKinney filed his habeas corpus petition in federal district court seeking relief from his conviction on a jury verdict in Florida state court for assault with intent to commit murder. As his sole ground for relief, Petitioner alleged that the trial court’s failure to grant a continuance resulted in a denial of Petitioner’s Sixth Amendment right to effective assistance of counsel and compulsory process for obtaining witnesses in his favor. The district court dismissed the habeas petition. We affirm.

Immediately prior to trial of this case, court-appointed counsel requested a continuance. Counsel indicated that depositions were being completed, and “whether or not there are going to be defense witnesses ... is one of the reasons for the continuance.” The State opposed the request on the ground that the victim, who was also a key witness, had suffered severe injury and had great difficulty getting to court for the proceedings. The motion for continuance was denied.

At trial the victim, Mrs. McKinney, testified that, as she was preparing to go to bed, her husband, Petitioner, sprayed lighter fluid on her and threw a lighted match at her, saying “I’m going to burn you up.” Petitioner, on the other hand, testified that he was cutting the top off of the can of lighter fluid in order to fill his cigarette lighter, when his wife had an epileptic seizure. According to Petitioner, this caused him to spill lighter fluid on Mrs. McKinney, and she apparently sparked the lighter. On rebuttal Mrs. McKinney and her son testified to previous assaults on her by Petitioner. Upon this testimony and that of several other witnesses, the jury returned a verdict of guilty, and the court sentenced Petitioner to a term of ten years.

Both parties agree that the grant or denial of a motion for continuance is entrusted to the sound discretion of the trial judge. Ungar v. Sarafite, 1964, 376 U.S. 575, 84 S.Ct. 841, 11 L. Ed.2d 921; United States v. Simpson, 5 Cir. 1972, 460 F.2d 1321; United States v. Gower, 5 Cir. 1971, 447 F.2d 187. Whether or not a court has abused its discretion must be determined on a case by case basis:

There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.

Ungar v. Sarafite, supra, 376 U.S. at 589, 84 S.Ct. at 850.

In the course of his habeas proceeding in federal district court, Petitioner alleged that, if his motion for continuance had been granted, the witnesses he would have called at trial would have provided important evidence, including testimony that Mrs. McKinney had been treated for epileptic seizures prior to the incident in question. However, neither the identity of these witnesses nor the nature of the testimony they would have presented was made known to the trial judge at the time the motion for continuance was submitted. During the two day trial the court was never informed of any more specific basis for granting a continuance than counsel’s general proffer that there might be witnesses who could aid in the defense of the case. In light of these facts and of the pain and inconvenience involved in Mrs. McKinney’s travel to the courthouse, we cannot say that the trial court abused its discretion in denying the motion for continuance.

Affirmed.

      . In his Reply Memorandum in the district court, Petitioner noted that his trial counsel had met with him for only five minutes prior to the day of trial. Petitioner stated no other facts, however, that would support a claim that his counsel did not render reasonably effective assistance irrespective of the trial court’s denial of the motion for continuance; and in the habeas petition itself, Petitioner made no such claim. We therefore do not consider that question to be before us on this appeal.


text:
    Robert WESLEY, Jr., #82257, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.
    No. 73-2713
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 11, 1974.
    Robert Wesley, pro se.
    William J. Baxley, Atty. Gen., Donald G. Valeska, II, Asst. Atty. Gen., Montgomery, Ala. for respondent-appellee.
    Before BROWN, Chief Judge, and DYER and SIMPSON, 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:

Wesley, a prisoner of the State of Alabama, has appealed from the district court’s denial of his petition for habeas corpus. We vacate the ruling below and remand the cause for an evidentiary hearing.

Wesley was seventeen years old when he pled guilty to three charges of burglary in the Circuit Court of Jefferson County, Alabama. On November 16, 1961, he was sentenced to serve two years consecutively on each charge. No direct appeal was taken from these judgments of conviction, the validity of which Wesley now attacks in these proceedings.

Wesley escaped from confinement on March 19, 1962, and was not returned to custody of the Alabama authorities until 1972. Thereafter he filed a petition in the nature of coram nobis under Alabama law, styled a “motion to vacate,” in his trial court. The action was dismissed after a very brief evidentiary hearing at which only Wesley testified, and without any findings of fact or conclusions of law. Wesley alleges that the judgment of dismissal subsequently was affirmed by the Alabama Court of Criminal Appeas (apparently without a published opinion).

In the court below, Wesley filed a habeas petition based upon the same grounds he had urged in his state motion to vacate: (1) that he was denied counsel at all stages of the trial proceedings; and (2) that his guilty plea had resulted from a combination of seven days’ incommunicado interrogation and police promises of “help” if he would plead guilty.

In its order denying habeas relief the district court ruled only with regard to Wesley’s first contention, holding that the record reflected that Wesley was represented by counsel at his arraignment, plea of guilty, and sentencing. These findings were based upon a docket entry in which the name of “J. Davis” appeared as counsel for the defendant, a notation in the court minutes to the effect that Wesley was represented by counsel, and an affidavit from the trial judge stating that although he did not have a personal and individual recollection of having handled the case, it was his consistent policy at that time to appoint counsel for indigent defendants and in every ease where this was done a notation was made in the record to this effect. Since there was no record of an appointment of counsel in Wesley’s case, the judge concluded in his affidavit that Wesley must have been represented by privately retained counsel.

In view of the fact that the record is not “silent” as to Wesley’s representation by counsel, he would have the burden of proving otherwise. However, he could hardly sustain his burden of proof unless he were accorded a full and fair evidentiary hearing. The district court should not have denied relief on this point without conducting such a hearing, in light of the shortcomings of the hearing held in the state court. See 28 U.S.C.A. § 2254(d); Dulin v. Henderson, 5 Cir. 1971, 448 F.2d 1238.

Secondly, the district court failed to rule on the averments of coercion and upkept plea bargain alleged by Wesley. He has alleged that while he was in jail serving a 180-day sentence for fighting, the burglary charges were brought against him and that he was transferred from the city jail to the county jail, where he was held incommunicado for seven days and interrogated for long periods without the presence of counsel. He further alleged that the police told him that they wanted to “clean up the books of several unsolved burglaries” and promised to “help” him if he pled guilty to the three burglary charges. If Wesley can prove these allegations he would be entitled to the relief he seeks. See Santobello v. New York, 1971, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427; Ross v. Wainwright, 5 Cir. 1971, 451 F. 2d 298. This issue was superfically covered at the state coram nobis hearing. An examination of the transcript of that hearing indicates that it was entirely inadequate, consisting only of a few questions by the judge addressed to Wesley and a dismissal with no written reasons given. Although the record indicates that two court-appointed counsel were present, there is no indication whatsoever that they took part in the proceedings.

We hold that the state court’s evidentiary hearing was not sufficiently “full and fair;” and that Wesley’s contentions are such that they cannot be denied summarily. See 28 U.S.C.A. § 2254(d); Townsend v. Sain, 1968, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770; Santobello v. New York, supra; Ross v. Wainwright, supra; Dulin v. Henderson, supra. Accordingly we VACATE the judgment below and REMAND the cause for further proceedings, including an evidentiary hearing at which Wesley should have counsel appointed to represent him.

Vacated and remanded, with directions.

      . See Wiman v. Argo, 5 Cir. 1962, 308 F.2d 674, cert. denied, 371 U.S. 933, 83 S.Ct. 306, 9 L.Ed.2d 270; Burton v. State of Alabama, 5 Cir. 1968, 396 F.2d 755.

      . Wesley testified at his state evidentiary hearing that the police promised him probation if he would plead guilty.

      . At the evidentiary hearing held in state court, Wesley testified, “My people wero poor and didn’t have money for a lawyer.”


text:
    FIRST BANK OF SAVANNAH, Plaintiff-Appellee, v. OIL SCREW CITATION, her engines, boiler, tackle, apparel, anchors, sails, spars and riggings, and Henry W. McDowell, Sr., Defendants-Appellants, Joyce R. McDowell, Intervenor-Appellant.
    No. 73-3082
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 11, 1974.
    Rehearing Denied Feb. 5, 1974.
    Stanley Karsman, A. Martin Kent, Savannah, Ga., for defendants-appellants.

      Walter C. Hartridge, II, Edwin D. Robb, Jr., Savannah, Ga., for plaintiff-appellee.
    Before BROWN, Chief Judge, and DYER and SIMPSON, 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 appeal from the foreclosure of a preferred ship mortgage, the district court aptly described the events leading up to it as including “complex banking loans, misunderstanding of the parties, credits to checking accounts of deposited bad checks, cancellation of notes based on the honoring thereof, separate checking accounts and complicated refinancing of indebtedness after charging back the credits for worthless checks.” From this welter of confusing actions taken by the parties emerges two simple issues both of which were resolved by the district court in favor of the Bank. We agree that the mortgage was valid and thus affirm the judgment of foreclosure.

At the outset we observe that the McDowells admit that the debt is due the Bank but they contend that it is not secured by a preferred ship mortgage. The district court found however, and the record supports the finding that the McDowells’ note to the Bank, which was secured by a preferred ship mortgage on the vessel “Citation”, was marked satisfied by the Bank because of a deposit by the appellees of a cheek, sufficient in amount to cover the indebtedness, but which was later returned to the Bank for insufficient funds. The district court concluded, and correctly so, that the note had never been paid, that the preferred ship mortgage had continuing validity, and that the Bank was entitled to foreclose it.

The second issue was posed by Joyce McDowell’s intervention to claim that $25,000 had been improperly withdrawn from her account by the Bank and that she was therefore the subrogee on the reexecuted Citation note and was thus subrogated to a like amount in the Registry as a result of the foreclosure sale of the vessel. The district court found no merit to this contention because it correctly held that the deposit was mistakenly credited to her account. While the district court erroneously stated the source of these funds it is immaterial because it is clear from the record that the $25,000 from the re-executed Citation note, was through a clerical error credited to her account instead of to the account of the mortgagors. The clerical error was detected and corrected the following day by debiting Joyce McDowell’s account and crediting the account of the mortgagors.

The district court’s findings of fact were not only not clearly erroneous, McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20, they were fully supported by the record.

Affirmed.