author: GIBBONS, Circuit Judge.

text:
    UNITED STATES of America ex rel. George HART, Appellant, v. Frank DAVENPORT, Sheriff of the State of New Jersey of Passaic County, and Howard D. Yeager, Warden, New Jersey Prison.
    No. 72-1287.
    United States Court of Appeals, Third Circuit.
    Argued Oct. 19, 1972.
    Submitted Jan. 31, 1973.
    Decided April 27, 1973.

      Stanley C. Van Ness, Public Defender, Herbert I. Waldman, Newark, N. J., for appellant.
    Joseph D. J. Gourley, Passaic County Prosecutor, John P. Goceljak, Paterson, N. J., for appellee.
    Argued Oct. 19, 1972.
    Before STALEY, GIBBONS and RO-SEN, Circuit Judges.
    Submitted on Briefs Jan. 31,1973.
    Before STALEY, ALDISERT and GIBBONS, Circuit Judges.

       Judge Rosen heard argument but died before opinion was filed.

   OPINION OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal from the denial of a petition for habeas corpus challenging a New Jersey sentence. Appellant Hart was convicted of unlawful possession of lottery slips, N.J.Stat.Ann. § 2A:121-3(b), working for a lottery operation, NJ.Stat.Ann. § 2A:121-3(a), and bookmaking, N.J.Stat.Ann. § 2A:112-3. The district court denied the petition on the basis of the State court record, without an evidentiary hearing, but, pursuant to 28 U.S.C. § 2253, granted a certificate of probable cause for appeal. Two issues, as to both of which State remedies have been exhausted, are raised by the petition. Hart contends, first, that he was deprived of the effective assistance of counsel in his criminal trial because in that trial a single defense attorney, retained by his code-fendant employers, represented him, the two employers, and three other code-fendants. His second contention is that in the criminal trial the State introduced evidence obtained in violation of the fourth amendment. Since no timely motion to suppress was made on his behalf, the second contention is closely related to the effective assistance of counsel argument.

Hart and five others were indicted for gambling offenses alleged to have been committed at Whitey’s Bar and Grill in Paterson. That business was owned by the codefendants John and Grace Bat-tersby. Hart was employed by them as a bartender. The Battersbys lived in an apartment above the business premise.Hart and the Battersbys were charged with maintaining a gambling resort, N. J.Stat.Ann. § 2A:112-3, bookmaking, N. J.Stat.Ann. § 2A: 112-3, possession of lottery slips, N.J.Stat.Ann. § 2A:121-3(b), and working for a lottery, N.J. Stat.Ann. § 2A: 121-3(a). Three patrons of the bar, Wolcott, Stewart, and Chambliss, were charged with possession of lottery slips. All six were represented by the same retained attorney and were tried together. No pretrial motions for severance or for suppression of evidence were made on behalf of any defendant. The record discloses no inquiry from the State trial court either to counsel or to the defendants as to any possible conflict of interest among the defendants. See Government of the Virgin Islands v. Hernandez, 476 F.2d 791 (3d Cir., 1973); Government of the Virgin Islands v. John, 447 F.2d 69, 74-75 (3d Cir. 1971).

At the end of the State’s case it consented to the dismissal of the charge that Hart had maintained a gambling resort. N.J.Stat.Ann. § 2A:112-3. All other charges went to the jury. In the defense case Wolcott, Stewart, Chambliss, and John Battersby took the stand. Hart and Mrs. Battersby did not. Wol-cott and Stewart were acquitted. Cham-bliss was convicted of possession of lottery slips, but did not appeal. The Bat-tersbys and Hart were convicted on all counts except the one charge against Hart which had been dismissed. Following the conviction Hart arranged for separate representation by the New Jersey Public Defender. An appeal on his behalf raising the same issues presented here resulted in an affirmance by the Appellate Division. State v. Hart, No. A-935-69 (N.J.Super., App.Div., Mar. 26, 1971). The New Jersey Supreme Court denied certification. State v. Hart, 58 N.J. 339, 277 A.2d 396 (1971). A separate appeal by the Battersbys resulted in an affirmance, and the denial of certification. State v. Battersby, 57 N.J. 140, 270 A.2d 42 (1970).

The indictments were the result of a raid conducted by the anti-gambling squad of the Paterson Police Department on March 18, 1969, in execution of a search warrant. Hart asserted on appeal that despite the failure of the common counsel to make a suppression motion admission of evidence seized in the raid should have been noticed as plain error. In rejecting this contention the Appellate Division, quoting from the disposition of the Battersbys’ appeal, State v. Battersby, No. A-891-69 (N.J. Super., App.Div., July 2, 1970), said:

“This point lacks substantial merit. This is not a situation where a defendant may have suffered a manifest denial of justice by reason of some palpably inept performance by an assigned attorney. The present case involves a hind-sight attack upon the professional handling of the defense by an attorney of one’s own choosing. There is nothing in the record to support the conclusion that a pretrial motion to suppress the incriminating evidence found upon defendants’ premises by the police in their execution of a search warrant, obtained upon the basis of a supporting affidavit, would have been granted.”

There was in the record, however, the affidavit upon which the search, warrant issued, which in relevant part reads:

“3. That the facts tending to establish the ground for this application and the probable cause of my belief as aforesaid, are as follows:
Tues. March 11, 1969 received from a confidtential informant, information regarding taveren in question that there was a bartender by the name of George taking horse and number action in the taveren and turning it over to owner who reside upstairs over the taveren with his wife.
Tues. 10:45 A.M. till 1:35 P.M. stood in area of taveren and went in there for lunch and then returned to office. All the time this date I observed from my private ear eleven men run in and run right out none of above stood in for any legth of time. Plus when I was in ther having lunch I observed two men come into establishment and talk to George and then he went upstairs at which time owners wife was downstairs with patrons. On this date I was in taveren from 12:p.m. till 12:50 p.m. the rest of time I spent riding around watching traffinto tav-eren and out.
3-13-69 Thurs.
I det. Tribio Verrone again took up a vantage point where I could not be detected from 11:30 till 3 P.M. and watched to see traffic into taveren At 12:p.m. I observed two railroad men after eating there lunch walk over two the taveren at which time I went in right behind them one man order a beer but the other went to George and had the Daily [N]ews in his hand I could see them in plain sight but at no time did this man give him a slip of paper he just talked to him and the went upstairs. Leading me to believe information recieved that owner is stationed upstairs taking action on horses I left after having lunch and several other men came into taveren and talk to [GJeorge but on this occasion thrre men came in but he didn’t go right upstairs until the third man was done with him but at no time did I see him write anything down just talk with the patrons and then go upstairs.
3-13-69 I again contacted my informant to see if he could make a bet with [GJeorge but he told me he won’t take any slips refering to George he runs upstairs when he has all he can remember, only off of his steady customers does he take slips.
3-17-69 Mon. I Det. Tribio Ver-rone again went into taveren on this date and had a few beers it was this time [I] heard phone ring it was approx. 11:35 a.m. [GJeorge went over to phone and spoke with someone for a minuet take care of things for me till I come back.
He returned shortly only when he came back down he was carring Daily [NJews. On this date while [IJ was in the taveren I again seen one of eleven men I had seen another day come into taveren he went directly to [GJeorge talke with him and then they both went upstairs and a old woman came down approx, five minuets went by and down came both [GJeorge and other gentleman and he left never havin a drink. It is in my belief that [GJeorge is taking the bets upstair to whoever is there which my informant says is the owner of the taveren, It is my belief that a search warrant should be issued so this investigation can be brought to a close.” [sicj.

This affidavit is palpably insufficient to support the issuance of the search warrant. The informant information is totally inadequate to establish his reliability. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The affiant’s observations could have been made at noon outside and inside any bar and grill. They do not, independent of the informant’s conclusions, establish probable cause. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The activities of “George” referred to are as consistent with innocent conduct as with bookmaking or maintaining a lottery. The district court opinion acknowledges as much, but sustains the seizure on other grounds:

“[IJf the legal sufficiency of the warrant were to be tested solely by the adequacy of the informant allegation, the Court feels the validity of the warrant could not be sustained. But a finding of probable cause must take into consideration the facts recited by Detective Verrone relating his personal observation of activities occurring at Whitey’s Bar and Grill on three separate occasions. The conclusion is reached that the seizure of evidence was not conducted in violation of petitioner’s Fourth Amendment rights. Thus the failure of counsel to move to suppress does not constitute ineffective representation of petitioner at trial.” United States ex rel. Hart v. Davenport, Civil No. 645-71 (D.N.J., Mar. 30, 1972).

The testimony of Detective Verrone referred to by the district court is testimony at trial, not testimony before the magistrate who issued the warrant. Compare this situation with that in United States ex rel. Gaugler v. Brier-ley, 477 F.2d 516 (3d Cir., 1973). Thus, the district court ruled that although the warrant was issued on the basis of a defective affidavit a suppression motion would not have been successful because a warrantless seizure would in the circumstances have been proper.

This ruling must be considered in light of the various charges and the different positions of the several defendants. There was no conspiracy charge. There are substantive differences between the offense of bookmaking, N.J. Stat.Ann. § 2A: 112-3, and the lottery offenses proscribed by N.J.Stat:Ann. § 2A: 121-3. The former is the making or taking and recording or registering of bets or wagers on races and other sporting contests. State v. Romeo, 43 N.J. 188, 207, 203 A.2d 23, 33 (1964), cert. denied, 379 U.S. 970, 85 S.Ct. 668, 13 L.Ed.2d 563 (1965). The latter statute defines as separate offenses possession of lottery slips, N.J.Stat.Ann. § 2A: 121-3(b), working for a lottery operator, N.J.Stat.Ann. § 2A:121-3(a), and being the owner of a building or place where any business of lottery or policy is carried on knowingly by the owner or an agency, N.J.Stat.Ann. § 2A:121-3(c). Hart was convicted of bookmaking, of possession of lottery slips, and of working for a lottery operator. As the State conceded at the end of its case, Hart, although so charged, not being the owner of the premises could not be convicted of an offense involving ownership of the premises. Some of the seized evidence tended to prove only lottery violations. Some of it tended to prove only bookmaking. The common attorney made no effort to differentiate when commenting on the evidence and requested no limiting instructions. Detective Verrone testified that on March 11, 13 and 17, he observed what he described as patrons writing out bets on paper and handing the paper either to Mrs. Battersby or to Hart. He made no arrest on these dates, and he did not include the details of his observation in an affidavit in support of an application for a search warrant or an arrest warrant. The arrests were made on March 18. If the seizures were to be sustained as incident to a lawful arrest a matter never considered by the State courts, they would have to be made because the officer had reasonable cause to believe an offense was being committed in his presence on that date. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Indeed, the trial court ruled (Tr. 29) that Verrone’s testimony about activities prior to March 18 could not be considered by the jury because on cross examination he conceded that his reference to bets on these days was pure conjecture. On March 18, when the arrests were made, Mrs. Battersby and the three patrons, Wolcott, Stewart and Chambliss, were in the bar and grill. Hart was not present. He had left and gone upstairs to the Battersbys’ apartment. Since no conspiracy was alleged, the seized evidence of betting activity would have to be connected to individual defendants in some way. Some such evidence was seized in the bar. An obvious defense strategy for Hart was to attribute origin and possession of that evidence to Mrs. Battersby, who according to the testimony attempted to conceal some betting slips in the garbage can. (Tr. 41-43). This strategy was not effectively pursued. Indeed, no limiting instruction as to the use of the evidence seized in the bar and grill while Hart was not present was even requested. The absence of such a request, which would, of course, have tended to focus the attention of the jury on Mrs. Battersby’s role, points up the conflicting position of counsel. The same is true of certain evidence seized from the patron defendants while Hart was upstairs.

Almost immediately after the arrests were made in the bar and grill two detectives went upstairs and knocked on the apartment door. Hart, who had a phone in his hand, opened the door. A search of the apartment was conducted. In a room remote from that in which Hart was using the phone, described as an office, the officers seized a suitcase, Exhibit S-9, containing money and a horse sheet and slips containing horse bets. From a dresser drawer in the bedroom in which Hart was using the phone, the officers seized a notebook, Exhibit S-10, allegedly gambling paraphernalia. Battersby was sleeping in the apartment, which undisputably belonged to him and Mrs. Battersby. No objection was made to the admission of the evidence seized in the apartment and no limiting instruction was requested on Hart’s behalf. Officer Verrone was the only officer who made any significant observations on March 18 prior to the arrests. His observations, all in the bar and grill, were probably insufficient to justify a warrantless arrest of Hart upstairs in the apartment. Battersby, however, was known to be one of the proprietors of the bar and grill. Ver-rone’s observations might have been sufficient to justify Battersby’s arrest for a violation of N.J.Stat.Ann. § 2A:112-3, and the seizures in the apartment might possibly have been justified as incident to his arrest. But neither the apartment nor the bar and grill belong to Hart, and there is no evidence of Hart’s possession of Exhibits S-9 and S-10. See United States v. Bonham, 477 F.2d 1137 (3d Cir., 1973). Another exhibit, S-15, was seized from Hart’s person, but that seizure, had objection been made, should properly have been suppressed since there was no probable cause to arrest Hart. Here, again, the predicament of counsel becomes clear, for any effort to negate Hart’s connection with Exhibits S-9 and S-10 would have the inevitable tendency to focus attention on Battersby’s role as a proprietor of a gambling enterprise as well as a bar and grill.

In his opening statement to the jury the defense attorney made this short reference to Hart:

“[Mrs. Battersby] had gone behind the bar to relieve Mr. Hart, who was a bartender. Mr. Hart had at that time gone to the upstairs apartment to call his wife or to call his veterinarian about the dog that he owned that was confined at the veterinarian’s place of business and he was concerned about its well being. The State contends that he was phoning in numbers or phoning in bets of some sort. This I will have to wait and see how they are going to show that.” (Tr. of Openings, 11).

Hart contends the veterinarian to whom he was talking at the time of his arrest was available to verify that he was not phoning in bets, but that the common defense attorney did not call him. He complains, as well, that whereas the patron defendants and Battersby took the stand, he was not called to support the representation counsel had made to the jury in the opening statement. Finally he contends, and the record bears him out, that the common defense attorney made no attempt, in his closing argument, to differentiate Hart’s position from that of his codefendants.

The absence of a meaningful closing argument on Hart’s behalf again illustrates the dilemma .of counsel. There was testimony of an admission by Bat-tersby that they were in this gambling business because the tavern business was not so good and they needed the money. (Tr. 135, 148). An obvious defense strategy for Hart was to emphasize this testimony in an attempt to convince the jury that Mr. and Mrs. Bat-tersby were the sole proprietors not only of the bar and grill but also of the gambling enterprise. Instead, the strategy adopted was to deny the admission. (Tr. of Summations, 20).

The record of the State proceedings, then, establishes that there were among the defendants in the trial conflicting' interests. The record is silent as to any advice to Hart respecting those conflicting interests by counsel, by the prosecutor, or by the court. Moreover, in a case of this type, particularly, a conflict arises long before the trial. That conflict is referred to in Justice Wein-traub’s opinion in In re Abrams, 56 N.J. 271, 266 A.2d 275 (1970). Abrams is a disciplinary proceeding against an attorney for undertaking at the behest and expense of an employer in a gambling enterprise the representation of an underling employee. That is precisely what the attorney did in this case for it is not disputed that the Battersbys, the employers, retained and paid the common attorney. In Abrams Justice Wein-traub wrote:

“But, accepting the premise that respondent had no prior commitment to Pickett’s organization, we nonetheless think it was improper for respondent to have accepted the organization’s promise to pay his bill, for such an arrangement has the inherent risk of dividing an attorney’s loyalty between the defendant and the gambler-employer who will pay for the services. Obviously, it is to the interest of the defendant’s employer that the defendant shall not turn him in. That is why the employer is willing to pay. As the Pennsylvania Supreme Court said in Salus [In re Salus], supra [321 Pa. 106] 184 A. [70] at 71:
‘ * * * xt is the latter [the bankers of the syndicates] who are anxious to protect the numbers writers so that they will have no cause for dissatisfaction and no occasion to disclose the operations of the system or the identity of parties by whom they are engaged.’ It is of course to the advantage of the convicted defendant to seek leniency by aiding the State in its pursuit of his employer. State v. DeStasio, 49 N.J. 247, 256-258 [229 A.2d 636] (1967), cert. denied, 389 U.S. 830, 88 S.Ct. 96, 19 L.Ed.2d 89 (1967). It is the duty of the defendant’s attorney to advise him of that opportunity. An attorney is hardly well situated to discharge that duty when he has agreed to look to the syndicate for the payment of his fee.
A conflict of interest inheres in every such situation. It is no answer that Canon 6 of the Canons of Professional Ethics permits the representation of conflicting interest ‘by express consent of all concerned given after a full disclosure of the facts,’ or that Canon 38, restated in affirmative terms, would permit the acceptance of compensation from others with ‘the knowledge and consent of his client after full disclosure.’ Neither rule is relevant when the subject matter is crime and when the public interest in the disclosure of criminal activities might thereby be hindered. It is inherently wrong to represent both the employer and the employee if the employee’s interest may, and the public interest will, be advanced by the employee’s disclosure of his employer’s criminal conduct.” 56 N.J. at 275-276, 266 A.2d at 278.

The legal standard to be applied to a claim of prejudice from joint representation is clear enough. The right to counsel guaranteed by the sixth and fourteenth amendments contemplates the service of an attorney devoted solely to the interests of his client. The right to such untrammelled and unimpaired assistance applies both prior to trial in considering how to plead, Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), and during trial, Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Recognizing that the right to such assistance of counsel may be waived, e.g., Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 87 L.Ed. 268 (1942), we have refused to find any such waiver from a silent record. Government of the Virgin Islands v. Hernandez, supra; Government of the Virgin Islands v. John, supra. We have not yet held that the coincidence of joint representation and a silent record is alone enough to require relief. But see Campbell v. United States, 122 U.S.App.D.C. 143, 352 F.2d 359 (1965). On the other hand, we have rejected the approach that before relief' will be considered the defendant must show some specific instance of prejudice. But see United States v. Lovano, 420 F.2d 769, 773 (2d Cir.), cert. denied, 397 U.S. 1071, 90 S.Ct. 1515, 25 L.Ed.2d 694 (1970); United States v. Alberti, 470 F.2d 878, 882 (2d Cir. 1972). Instead, we have held that upon a showing of a possible conflict of interest or prejudice, however remote, we will regard joint representation as constitutionally defective. Walker v. United States, 422 F.2d 374 (3d Cir.), cert. denied, 399 U.S. 915, 90 S.Ct. 2219, 26 L.Ed.2d 573 (1970). Cf. United States v. Rispo, 460 F.2d 965, 970 (3d Cir. 1972) ; United States ex rel. Small v. Rundle, 442 F.2d 235, 238 (3d Cir. 1971). The Walker test of possible conflict of interest or prejudice however remote, must be applied, moreover, in light of the normal competency standard for adequacy of representation by counsel adopted in this circuit. United States ex rel. Green v. Rundle, 434 F.2d 1112 (3d Cir. 1970) ; Moore v. United States, 432 F.2d 730 (3d Cir. 1970). Normal competency includes, we think, such adherence to ethical standards with respect to avoidance of conflicting interests as is generally expected from the bar.

This, being so, Justice Weintraub’s opinion in the Abrams case should alone suffice to establish Hart’s claim that he was tried without the effective assistance of counsel. But we need hardly rest our decision on the Abrams ease alone, since on the present record the Walker test — a showing of a possible conflict of interest or prejudice, however remote — clearly has been met. And this test is applicable to state proceedings, United States ex rel. Small v. Rundle, supra, just as the Moore standard on adequacy of representation is, United States ex rel. Green v. Rundle, supra.

There remains the final contention that because the attorney was privately retained his actions in rendering ineffective assistance should not be attributed, for fourteenth amendment purposes, to the State of New Jersey. See, e.g., United States ex rel. Wilkins v. Banmiller, 205 F.Supp. 123 (E.D.Pa. 1962) , aff’d, 325 F.2d 514 (3d Cir. 1963) , cert. denied, 379 U.S. 847, 85 S.Ct. 87, 13 L.Ed.2d 51 (1964). Cf. United States ex rel. O’Brien v. Maroney, 423 F.2d 865 (3d Cir. 1970). This contention argues too much. We have never indicated that the hand of the fourteenth amendment is stayed in every case where a defendant is represented by private counsel. What we have previously said is that actions of a privately retained attorney do not for fourteenth amendment purposes per se involve state action. Where the questioned conduct of such attorney takes place in the presence of the court or the state attorney, the state action basis for vindication of the alleged fourteenth amendment deprivation is the failure of the state prosecutor or state court to take necessary corrective action. Thus, in Wilkins and O’Brien, there was no proof that the state’s attorney or court had knowledge of the alleged deprivation. As early as United States ex rel. Darcy v. Handy, 203 F.2d 407, 426-427 (3d Cir.), cert. denied, 346 U.S. 865, 74 S.Ct. 103, 98 L.Ed. 375 (1953), this court recognized that when the attorney’s conduct is so lacking in competence or good faith that it shocked the conscience of the court or prosecutor as officers of the state, there was state action for fourteenth amendment purposes. Later the standard of competence was modified in Moore v. United States, supra, but the principle of state action was reaffirmed in United States ex rel. Green v. Rundle, supra. Indeed, it is difficult to imagine how a distinction between assigned and retained counsel in a conflict of interest context could be squared with the duty of the trial judge “ . . .of seeing that the trial is conducted with solicitude for the essential rights of the accused.” Glasser v. United States, supra, 315 U.S. at 71, 62 S.Ct. at 465. The action of the trial judge in permitting the case to go forward without so much as an inquiry as to potential harm arising from joint representation is the state action complained of. The very fact that courts control admission to their bar of licensed practitioners is a recognition that laymen simply are not equipped to appraise a lawyer’s professional skills. A rule which would apply one fourteenth amendment test to assigned counsel and another to retained counsel would produce the anomoly that the non-indigent, who must retain an attorney if he can afford one, would be entitled to less protection from the trial court. The effect upon the defendant — confinement as a result of an unfair state trial — is the same whether the inadequate attorney was assigned or retained. Cf., e.g., Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948).

There is much to be said for the rule of the District of Columbia Circuit which assumes prejudice and nonwaiver if there has been no on-the-record inquiry by the court as to the hazards to defendants from joint representation. Campbell v. United States, supra. This case does not require the adoption of a per se rule since, as we have said above, the Walker test has been met. But we reiterate what Judge Rosenn wrote in Government of the Virgin Islands v. Hernandez, supra:

“[W]e believe the dangers inherent in joint representation are serious enough ... to make it highly desirable that [defendants] be apprised of them. If such dangers are communicated to [defendants], difficult questions of whether a conflict of interest arose because of joint representation can be avoided. [Defendants] will intelligently be given the choice of whether to reject joint representation or to waive their right to the unfettered representation made possible by separate counsel.”

To this admonition we add that the warning should come at the earliest stage of the criminal justice process, so that each defendant can be made aware of the advantages, such as grants of immunity for testimony or more lenient treatment, which sometimes come to those who leave a criminal enterprise and go their own way.

The order of the district court will be reversed and the case remanded with a direction that the writ of habeas corpus should issue, discharging the petitioner Hart from State custody unless within a reasonable time to be fixed by the district court he is afforded a new trial.

      . See N.J.Stat.Ann. § 33 :l-35 governing inspection of premises licensed to dispense alcoholic beverages. Cf. State v. Zurawski, 89 N.J.Super. 488, 215 A.2d 564 (1965), aff’d, 47 N.J. 160, 219 A.2d 614 (1966). The State did not at the trial contend that the search in question was being made on behalf of the Division of Alcoholic Beverage Control or another license issuing authority.


source: Caselaw Access Project

author: KOELSCH, Circuit Judge:

license: Public Domain

text:
    Gilbert F. SIELING, Sr., Petitioner-Appellant, v. Frank A. EYMAN, Warden, Arizona State Prison, Respondent-Appellee.
    No. 71-2784.
    United States Court of Appeals, Ninth Circuit.
    April 23, 1973.

      Dennis J. Skarecky (argued), Post-Conviction Legal Assistance Clinic, Tucson, Ariz., for petitioner-appellant.

      William P. Dizon, Asst. Atty. Gen. (argued), Gary K. Nelson, Atty. Gen., Phoenix, Ariz., for respondent-appellee.
    Before MERRILL, KOELSCH, and DUNIWAY, Circuit Judges.
   KOELSCH, Circuit Judge:

Gilbert F. Sieling was charged by information in the Arizona Superior Court with three counts of assault with a deadly weapon, and five counts of assault to commit murder. At his arraignment, the court entered a plea of not guilty for him and granted a defense motion for the appointment of two psychiatrists to examine Sieling to determine whether he was competent to stand trial. When the two psychiatrists disagreed on the issue, the court ordered a third expert to examine the defendant. At a hearing, held pursuant to Rule 250, Arizona Rules of Criminal Procedure, 17 A.R.S., the reports of the examining psychiatrists were considered, and each of the experts testified. All three of the psychiatrists expressed the opinion that, at the time of the alleged crimes, Sieling was insane under the applicable M’Naghten standard; however, two of them were of the opinion that he was then able to understand the proceedings and to assist counsel in his defense. The trial court concluded that Sieling was competent to stand trial.

Approximately a month later, shortly before the scheduled trial date, Sieling notified the court that he wished to change his plea. He was brought into court, and a brief inquiry was made by defense counsel, at the court’s direction, regarding Sieling’s understanding of the charge and the consequences of a guilty plea. A plea of guilty was entered on the counts of assault with a deadly weapon and, pursuant to a plea bargain, the court granted the prosecution’s motion to dismiss the five remaining counts in the information. The court then sentenced Sieling to consecutive terms of 8-10, and 4-6 years.

After exhausting all available state post-conviction remedies, Sieling petitioned the United States District Court for a writ of habeas corpus. The matter is here on the court’s judgment dismissing his petition.

Sieling bases his right to relief on the ground that his guilty pleas were invalid. He contends that he was mentally incompetent to enter them*. In substance, his argument is that neither the finding of competency to stand trial nor the guilty plea proceedings, held in the trial court, adequately resolved the question of his competency to waive his constitutional right to trial. He points out that his competency to make such a waiver was not at issue at the competency hearing, and accordingly, the trial court never made a finding on that issue; further, he argues that the colloquy immediately preceding his guilty plea cannot suffice to resolve the question, because it consisted of no more than the usual inquiry concerning volun-tariness, lack of coercion, and understanding of the consequences, and therefore did not extend into the area of his mental competency at all.

Support for Sieling’s argument is found in Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966). In that decision, the Supreme Court gave recognition to a distinction between a defendant’s mental competency to stand trial, and his competency to waive his right to counsel at trial. The Court held that a trial court finding, under Arizona Criminal Rule 250, that the defendant was competent to assist counsel in his defense, did not suffice as a finding that he was also competent to waive such a fundamental constitutional right as the right to the assistance of counsel.

A plea of guilty “is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence.” Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927); Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). “Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of tlje Fourteenth. Malloy v. Hogan, 378 U.S. 1 [84 S.Ct. 1489, 12 L.Ed.2d 653]. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145 [88 S.Ct. 1444, 20 L.Ed.2d 491], Third, is the right to confront one’s accusers. Pointer v. Texas, 380 U.S. 400 [85 S.Ct. 1065, 13 L.Ed.2d 923].” Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). Consequently, the courts must exercise the “utmost solicitude of which [they] are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.” Boykin v. Alabama, supra, 395 U.S. at 243-244, 89 S.Ct. at 1712.

It is of course well settled that a defendant in a criminal trial cannot be deemed to abandon any fundamental constitutional protection unless there is both “an intelligent and competent waiver by the accused.” Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Westbrook v. Arizona, supra. In the typical case — that is, when the defendant’s sanity or mental capacity has not been put in issue— the determination of the validity of the waiver by the defendant can be assessed with an assumption that he is mentally capable of making the weighty decisions involved in giving up his right to counsel, cross-examination, trial by jury, or his privilege against self-incrimination. However, where a substantial question of a defendant’s mental capacity has arisen in a criminal proceeding, it is logically inconsistent to suggest that his waiver can be examined by mere reference to those criteria we examine in cases where the' defendant is presumed competent, since in the latter cases no inquiry into the defendant’s mental capacity to make the waiver is made. Cf. Pate v. Robinson, 383 U.S. 375, 384, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). If a defendant who can be presumed competent pleads guilty, a court can assess the adequacy of his waiver by examination of the objective evidence in the record, such as the advice given him by the court as to the nature of the charge, the waivers resulting from the plea and the sentencing prospects, as well as the defendant’s statements or responses made in open court. Where the question of a defendant’s lack of mental capacity lurks in the background, however, the same inquiry, while still necessary, fails to completely resolve the question of whether the defendant can properly be said to have had a “rational, as well as a factual, understanding” [Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Schoeller v. Dunbar, 423 F.2d 1183, 1184 (9th Cir. 1970)] that he was giving up a constitutional right. Cf. Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966).

We think Westbrook makes it plain that, where a defendant’s competency has been put in issue, the trial court must look further than to the usual “objective” criteria in determining the adequacy of a constitutional waiver. In Westbrook, supra, although the state court had, after hearing, concluded that the defendant was mentally competent to stand trial, the Supreme Court deemed it essential that a further “inquiry into the issue of his competence to waive his constitutional right to the assistance of counsel . . .” was required. 384 U.S. at 150, 86 S.Ct. 1320. It was not suggested there, nor has it been in this case, that the state court’s determination that the accused was competent to stand trial was incorrect. The clear implication, then, is that such a determination is inadequate because it does not measure the defendant’s capacity by a high enough standard. While the Court did not suggest a standard, it is reasonable to conclude from the Court’s language that the degree of competency required to waive a constitutional right is that degree which enables him to make decisions of very serious import. Judge Hufstedler, in Schoeller v. Dunbar, 423 F.2d 1183, 1194 (9th Cir. 1970) has suggested the following standard: “A defendant is not competent to plead guilty if a mental illness has substantially impaired his ability to make a reasoned choice among the alternatives presented to him and to understand the nature of the consequences of his plea.” We think this formulation is the appropriate one, for it requires a court to assess a defendant’s competency with specific reference to the gravity of the decisions with which the defendant is faced.

The examination and inquiry into Sieling’s competency, made by the state court here, was not directed at such a level of competency. Under Rule 250, Arizona Rules of Criminal Procedure, the trial court’s inquiry is directed to whether a defendant is “. able to understand the proceedings and to assist in his defense.” In Westbrook, that same Arizona determination was held insufficient for waiver of counsel purposes. If such a determination is deficient on the facts of Westbrook, we think a fortiori it is a deficient basis for upholding a plea of guilty.

In our opinion, this court’s per curiam decision in Small v. Arizona, 455 F.2d 456 (9th Cir. 1972) does not compel a contrary result. In Small the court upheld a guilty plea against an attack based on the adequacy of the state court’s determination that the petitioner was competent to stand trial, a determination made after the entry, but before the trial court’s acceptance, of the plea. The decision did not, however, discuss the standard of competency involved in these determinations; that question was not briefed and was therefore not before the court. Accordingly, Small does not control our decision.

As to the proper form of relief, we think a remand to the state court may be adequate to resolve the question of Sieling’s competency to plead guilty. The Supreme Court in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) faced a problem of determining a defendant’s competency some six years after the defendant was tried. There the Court concluded that a retrospective determination of the defendant’s competency could not satisfactorily be made because inter alia, “expert witnesses would have to testify solely from information contained in the printed record.” 383 U.S. at 387, 86 S.Ct. at 843. That was so, because the trial court had never inquired into the competency question, and thus medical experts had never examined Robinson at the time of the trial. Therefore, the only proper course was a new trial. Here, however, Sieling was examined within a month before his plea by three medical experts, each of whom submitted reports and testified before the trial court. The scope of their examinations and the content of the opinions they expressed may be sufficient for the trial court to determine whether or not their opinions can support a finding that Seiling was competent to plead guilty as well as to stand trial. We note, however, that one of the experts disagreed even as to Siel-ing’s competence to stand trial, and the trial court may conclude that it is impossible from the present state of the record to make the determination we hold is required. However, we conclude that the trial court should have an opportunity to review the psychiatric evidence in light of our opinion, to decide in the first instance, whether there is sufficient evidence upon which to make that determination.

Accordingly, the judgment is reversed and the cause remanded to the District Court to grant the writ, unless within 60 days the State obtains trial court review of the psychiatric evidence in light of the views expressed herein. The District Court shall retain jurisdiction of the cause; if the state court vacates the pleas, then the cause shall be dismissed; should relief be denied the District Court shall then review the matter in conformity with this opinion.

Reversed and remanded.

      . Judge Hufstedler dissented in Sehoeller. However, her quoted statement was not made with respect to any matter in issue in that case, nor was it the subject of attention by the majority, but constituted simply her passing observation on an unrelated question.

      . In Rees v. Peyton, supra, the Supreme Court held that Rees could not be permitted to withdraw his pending certiorari petition, where Ms counsel had put before the Court a question of Rees’ competence, until it could be determined “whether he has a capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or, on the other hand, whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in these premises.” 384 U.S. at 314, 86 S.Ct. at 1506.

      . It should be noted that the transcript of the psychiatrists’ testimony before the state trial court is not in the record on this appeal, nor, apparently, was it before the District Court. The District Court’s conclusion that the state court inquiry was full and fair is therefore erroneous. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) ; Selz v. California, 423 F.2d 702 (9th Cir. 1970).


author: HILL, Circuit Judge.

text:
    H. R. GIBSON, Sr., d/b/a Gibson Products Company, Plaintiff-Appellant, v. Clinton E. JEFFERS, Commissioner of Agriculture, State of Colorado, Defendant-Appellee.
    No. 72-1405.
    United States Court of Appeals, Tenth Circuit.
    Argued Jan. 11, 1973.
    Decided May 3, 1973.

      Bardwell D. Odum and Robert E. Rad-ex', Jr., Dallas, Tex., for plaintiff-appellant.
    Russell P. Kramer, Sp. Asst. Atty. Gen. and James K. Kreutz, Asst. Atty. Gen. (Duke W. Dunbar, Atty. Gen., and John P. Moore, Deputy Atty. Gen., Denver, Colo., on the brief), for defendant-appellee.
    Before BREITENSTEIN,' HILL and McWILLIAMS, Circuit Judges.
   HILL, Circuit Judge.

Plaintiff-milk distributor appeals dismissal of his declaratory judgment complaint by the federal district court of Colorado for lack of jurisdiction. The complaint was instituted to determine plaintiff’s rights under the Colorado Milk Marketing Order issued by ap-pellee Commissioner of Agriculture.

Since 1966 appellant, a Texas citizen, has been engaged in the business of buying milk and milk products in the State of Oklahoma for resale to retail outlets located in Colorado. In the latter part of January, 1971, the Commissioner of Agriculture advised appellant that his business of selling milk and milk products was subject to regulation by Docket A-20, State of Colorado, Department of Agriculture, Marketing Order to Promote and Regulate the Marketing of Milk and Milk Products in the State of Colorado, as amended January 15, 1971. This order required in part that distributors file a schedule of prices, discounts and rebates with the Commissioner of Agriculture at least thirty days before offering these commodities for sale in Colorado.

Appellant shortly thereafter filed with the Commissioner a schedule of prices, discounts and rebates; but nevertheless on March 9, 1971, appellant was served with a temporary restraining order prohibiting him from selling any milk or milk products in Colorado until thirty days after the filing of a “legal” schedule of prices, discounts and rebates. Three days later a second temporary restraining order was served on appellant restraining him from selling milk or milk products until he had followed the Colorado Milk Marketing Order or until further order of the court. On the same date as issuance of the second temporary restraining order, appellant received a letter from the manager of the Colorado Milk Marketing Board acknowledging receipt of the schedule of prices, discounts and rebates, but refusing to approve the schedule for the normal 30-day waiting period. On March 19, 1971, a Colorado district judge issued a temporary injunction at appellee’s request prohibiting and enjoining appellant from selling or offering for sale milk products in the State of Colorado until April 7, 1971, or until further order of the court. After finding that appellant was not selling below cost, appellee advised the court of such fact and the temporary injunction was terminated on April 5, 1971.

Appellant’s problems with the Commissioner of Agriculture were not over. Although his schedule had been approved, the approval was limited to marketing areas I, II, III, VII and IX. On July 14, 1971, appellee informed appellant that no schedule of prices was on file or approved for distribution of milk and milk products in marketing area VI. Appellant filed a second schedule of prices with applicability to area VI even though his first schedule filed was intended for use throughout the State of Colorado. Appellee thereafter changed his course of attack and obtained a preliminary injunction on August 26, 1971, prohibiting appellant from selling and distributing milk until appellant’s handler in the State of Oklahoma filed a schedule of prices, discounts and rebates which was approved by the Commissioner of Agriculture.

As a result of appellee’s exertion of authority under Docket A-20, appellant was prevented from selling milk to retail outlets in Colorado from March 9, 1971, to April 5, 1971, and was prohibited from selling milk in area VI from August 23, 1971, to October 11, 1971. Needless to say, appellant feels the Commissioner’s interpretation of his authority under Docket A-20 is strained and in violation of the law.

During the time appellant was enjoined by a state court from selling milk in Colorado, he filed suit in the United States district court seeking monetary damages against the Colorado Commissioner of Agriculture, and a temporary restraining order, a preliminary injunction and a permanent injunction prohibiting the Commissioner from enforcing Docket A-20. Appellant claimed he was damaged in the amount of $36,000. This figure was arrived at by taking his gross revenue lost for every week he was prohibited from doing business as a result of appellee’s unlawful interpretation of Docket A — 20. The weekly gross revenue was $9,000 and from this amount appellee earned gross profits of approximately $2,500. During the four weeks he was enjoined from selling milk in Colorado, appellant allegedly suffered a loss of over $10,000 in gross profits.

On the merits of the case appellant ai’gued that Docket A-20 as interpreted by appellee unconstitutionally burdened interstate commerce in violation of Article 1, Section 8, Clause 3, along with being an impost or duty on imports in violation of Article 1, Section 10, Clause 2. Appellant further charged that Docket A-20 as applied by appellee deprived him of his property without due process of law and therefore violated the Fourteenth Amendment to the United States Constitution. Finally, appellant alleged that as Congress has preempted the field of interstate commerce, appellee’s enforcement of Docket A-20 violated the Interstate Commerce Act, Title 49 U.S. C.

The United States district court held that jurisdiction might properly be invoked under 28 U.S.C. §§ 1331 and 1332. It was the court’s opinion, however, that because the state injunction had expired before appellant’s ease was heard, it was moot within the principles of Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969), and Huse-man v. Finch, 424 F.2d 1237 (10th Cir. 1970).

Appellant amended his complaint and asked for a declaratory judgment as provided in 28 U.S.C. § 2201 His first amended complaint leveled several new charges on the constitutionality of Docket A-20, but nowhere were his jurisdictional arguments buttressed. The appel-lee vigorously challenged appellant’s right to sue in federal court. Appellee charged there could be no recovery against the Commissioner of Agriculture individually as he was acting under color of state authority when he prohibited appellant from selling milk commodities in Colorado, and therefore cloaked with sovereign immunity. Appellee further argued that appellant in his pleadings had offered no facts showing damage in the requisite $10,000 jurisdictional amount. Appellant’s original complaint alleged approximately $10,000 in lost gross profits but as gross profits are not a measure of damages, appellant had failed to surmount the jurisdictional hui’dle.

The court was in agreement with ap-pellee’s contentions but allowed appellant to file a second amended complaint showing the requisite jurisdictional amount. Appellant introduced a new issue into the case in his second amended complaint. He charged his civil rights were being violated by the Commissioner of Agriculture in that he was not being treated equally with distributors living within the State of Colorado. Supporting this allegation appellant pointed out that Docket A-20 prohibited distributors living outside Colorado from voting for members of the Colorado Milk Board. Such discrimination was in violation of 28 U.S.C. § 1343. Appellant also pleaded in general allegations that his inability to sell milk or milk products in marketing area VI from August 23, 1971, to October 11, 1971, caused him to suffer the loss of his right to do business. No facts were presented showing what his damages were as a result of the injunction in market area VI.

Once again the district court felt jurisdictional requisites had not been properly alleged, but nevertheless appellant was allowed to file another amended complaint. In his third and final amended complaint appellant asserted several other forms of damages resulting from appellee’s alleged illegal conduct. Besides lost profits and decrease in market value of his business, appellant charged he was out overhead expenses along with losing the use of his business property during the time he was enjoined from selling milk and milk products in Colorado. These general allegations were not supported by any facts showing the amount of damages. After reviewing the third amended complaint the lower court held appellant had failed to show facts sufficient to invoke jurisdiction. Utilizing as measure of damages the cost to appellant of complying with the order, the court found damages to be insufficient for jurisdictional purposes. City of Lawton, Oklahoma v. Chapman, 257 F.2d 601 (10th Cir. 1958). As appellant had been unable to show jurisdictional amount in three amended complaints, the court dismissed his complaint for want of jurisdiction.

Appellant on appeal presents two issues for consideration. He first charges that his complaint sufficiently alleges the jurisdictional amount as required by 28 U.S.C. §§ 1331-1332 and Rule 8, F.R. Civ.P. His second issue is that damages may be measured by loss of the right to do business, loss of profits from a preexisting business, loss of market value in a preexisting business and/or loss of use of property. Whichever way his damages are measured, appellant asserts that he has proved his damages to be in excess of $10,000.

Generally speaking, under federal question and diversity cases all that is required in the allegations is that the matter in controversy exceeds, exclusive of interest and costs, the sum of $10,000. 1 Moore’s Federal Practice, 0.-92 [1], p. 834 (2 ed. 1948). The test to determine amount in controversy is not the sum ultimately found to be due, but the sum demanded in good faith. Ordering dismissal of an action in federal district court must therefore be based on a legal certainty that the claim is for less than the jurisdictional amount. Farmers Elevator Mutual Insurance Co. v. Jewett, 394 F.2d 896 (10th Cir. 1968); Branding Iron Club v. Riggs, 207 F.2d 720 (10th Cir. 1953). When dismissal for lack of jurisdictional amount also constitutes a decision on the merits, the court should be even more reluctant to dismiss the case. Jaconski v. Avisun Corp., 359 F.2d 931 (3d Cir. 1966).

Although allegations in the complaint need not be specific or technical in nature, sufficient facts must be alleged to convince the district court that recoverable damages will bear a reasonable relation to the minimum jurisdictional floor. Nelson v. Keefer, 451 F.2d 289 (3d Cir. 1971). Merely asserting an amount in controversy equal to the minimum sum required does not entitle appellant to sue in federal court. He must allege sufficient damages to assure the district court that the jurisdictional requirement has not been “thwarted by the simple expedient of inflating the complainant’s ad damnum clause.” Nelson v. Keefer, supra at 294.

Once the jurisdictional amount is challenged the burden of proving jurisdiction is on the party asserting it. F & S Construction Co. v. Jensen, 337 F.2d 160 (10th Cir. 1964). And where the motion to dismiss states that it affirmatively appears from the allegations of the complaint that the requisite jurisdictional amount is not involved, the question of jurisdiction may be determined on the allegations of the complaint without the production of any evidence. Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111 (1939). Such was the procedure used in the present case. Appellant was given three chances to amend his complaint and after each amendment appellee attacked the complaint for lack of jurisdiction. The trial court felt three chances at showing the jurisdictional amount was enough. We agree.

Appellant’s third amended complaint merely alleges that the amount in controversy exceeds $10,000 exclusive of interest and costs. Nowhere does he attempt to show how he arrived at this amount. Instead he offers general statements such as lost profits resulting from the “illegal injunctions,” decrease in market value of his business, continuing overhead expenses, and loss of the right to use his business property. These general allegations are insufficient when the other party challenges the legal sufficiency of the complaint. Appellant was charged with showing his damages and he failed to carry his burden. If we combine all his complaints together, the closest he has come to averring facts sufficient to prove jurisdiction is his assertion in the original complaint that he suffered loss of gross profits of approximately $10,000 for the four weeks he was enjoined from selling milk and milk products in Colorado. Gross profits, however, do not furnish the proper basis for measuring damages in cases such as the one confronting us. Lee v. Durango Music, 144 Colo. 270, 355 P.2d 1083 (1960).

Appellant is asking the federal district court to interpret Colorado’s milk marketing regulations. • Our court on a previous occasion held that when enforcement of state law is sought to be restrained by resort to the federal court, “the amount in controversy is to be determined by the damages which would result to the party requesting the injunction if he were required to comply with the statute or ordinance to carry on his business.” City of Lawton, Oklahoma v. Chapman, supra 257 F.2d at 603-604. Nowhere do the allegations in appellant’s amended complaints set forth any facts showing what the losses were from appellee’s alleged wrongful conduct. Three times appellant was allowed to amend his complaint to be more specific, and three times the amended complaint alleged damages only in general terms.

Appellant failed to properly allege the requisite jurisdictional amount and therefore the lower court correctly dismissed his action for want of jurisdiction.

Affirmed.

      . 28 U.S.C. § 2201.

      . Appellee thereafter requested a permanent injunction against Gibson until its handler in Oklahoma filed the proper schedules. The Colorado district court ruled it was without jurisdiction over the handler and refused to grant the injunction. On appeal the Colorado Supreme Court affirmed tlie lower court decision on the ground that Gibson’s handler in Oklahoma did not have sufficient contact with Colorado to invoke in personam jurisdiction. Colorado v. Gibson, 508 P.2d 374 (Colo.1973).

      . 28 U.S.C. § 1331(a). The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.
      28 U.S.C. § 1332(a). The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,-000, exclusive of interest and costs, and is between—
      (1) citizens of different States;
      (2) citizens of a State, and foreign states or citizens or subject thereof; and
      (3) citizens of different States and in which foreign states or citizens or subjects thereof are additional parties.

      . 28 U.S.C. § 2201. In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

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

      . Rule 8, F.R.Civ.P. (a) Claims for relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.
      (e) Pleading to be Concise and Direct; Consistency. (1) Each averment of pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.
      (f) Construction of Pleadings. All pleadings shall be so construed as to do substantial justice.

      . Bule 8, F.B.Civ.P. (e)(1).


author: PER CURIAM.

text:
    Walter Mark FLANAGAN, Petitioner-Appellant, v. Jim ROSE, Warden, Respondent-Appellee.
    No. 72-2079.
    United States Court of Appeals, Sixth Circuit.
    Argued April 10, 1973.
    Decided May 22, 1973.
    Blanchard E. Tual (Court Appointed), Tual, Douglas & Tual, Memphis, Tenn., for petitioner-appellant.
    R. Jackson Rose, Asst. Atty. Gen., Nashville, Tenn., David M. Pack, Atty. Gen., of counsel, for respondent-appel-lee.
    Before PHILLIPS, Chief Judge, and KENT and LIVELY, Circuit Judges.
   PER CURIAM.

This is an appeal from the denial of a writ of habeas corpus. The appeal challenges the legality of a search warrant which was executed by state officers to obtain evidence to establish that the appellant and his co-defendants had been robbing the coin box of a pay telephone. Two search warrants are involved: one for the search of rooms at a motel, and the other for the search of an automobile located on the motel premises.

The affidavit in support of the search warrant was executed by the same af-fiant in each case. The affiant was not identified as a police officer, which in fact he was. In each affidavit this appellant, together with his co-defendants, is named. The affiant stated, in his affidavit in support of the search warrant, “that he has good ground and belief and does believe * * * ” that the appellant and his co-defendants are in possession of stolen property and burglary tools, and the affidavit continued, “and his reasons for such belief are that affiant has received information from David Hindman that burglary tools and/or stolen property was stored at the above premises, November 11, 1965.” The other affidavit is exactly the same, except the word “automobile” is substituted for the word “premises”.

The affidavit does not identify David Hindman. There is nothing to establish or even suggest that David Hindman was an individual upon whose information reliance could be placed. There is nothing in the affidavit to establish the circumstances under which David Hindman may have obtained the information to which reference is made.

In summary the affidavits are clearly inadequate within the meaning of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

It is claimed by the appellee, and the district court found, that the magistrate who issued the search warrants had other information in regard to the circumstances which led up to the affidavit for the search warrant, including the identity of Hindman and how Hindman obtained the information, referred to in the affidavit, which justified the issuance of the warrant. ■

The transcript of the evidentiary hearing in the district court, and the transcript of all proceedings in the state trial court are insufficient to establish that the magistrate who issued the warrant took any sworn testimony to supplement the allegations in the affidavits for the search warrants. In fact the officer who swore to the affidavits in support of the search warrants testified before the District Judge:

“A. Well, I remember making this out [the affidavit] and taking it out to his residence.
Q. That is really all you remember about it, isn’t it, Mr. Anderton?
A. Telling him what happened, I don’t know what I said exactly. * * * * * -x-
Q. Sir, the other question that I wanted to try to make clear is, you can’t say whether or not you walked in there and just started talking to the Judge in, normally, as officers do, and as lawyers do in the courtroom, and made some statement to him about what your problem was and so forth, and then later presented, handed him the affidavit and the search warrant, and then he swore you to the contents of the warrant, you can’t tell us the sequence of events, can you?
A. No, sir. I sure can’t.”

The same issue relating to a magistrate having information in addition to that contained in the affidavit was presented to this Court in Tabasko v. Barton, 472 F.2d 871, 874 (6th Cir. 1972). The statement made in that case is applicable to this case.

“We have read and reread the entire transcript of the hearing before the District Judge. We find therein no language from affiant which can be construed as a statement that he gave evidence under oath, except when he swore to the contents of the affidavit.”

In addition to the transcript of the hearing before the District Judge we have read and reread the transcript of the trial of the principal case and can find nothing “which can be construed as a statement that the [affiant] gave evidence [before the magistrate] under oath, except when he swore to the contents of the affidavit.”

Since the evidence secured in the search was essential to establish the appellant’s connection with the crime the admission of such evidence cannot be harmless error.

The judgment of the District Court is reversed and the case is remanded for the entry of an order granting the writ of habeas corpus on such terms as may appear to the District Judge to be appropriate.


text:
    Charles HULL, Petitioner-Appellant, v. HOLIDAY INNS OF AMERICA, INC., a Tennessee corporation, Defendant-Third-Party Plaintiff-Appellee, Cross-Appellant. v. James H. COMINS et al., Third-Party Defendants-Appellees Cross-Appellees.
    Nos. 72-1549, 72-1550.
    United States Court of Appeals, Sixth Circuit.
    April 26, 1973.
    Ralph H. Adams, Detroit, Mich., on brief for appellants.
    Plunkett, Cooney, Rutt & Peacock, Detroit, Mich., for Holiday Inns of America, Inc.
    Floyd Westcott, Alexander, Buchanan & Conklin, Detroit, Mich., for Comins.
    Manuel Zechman, Detroit, Mich., for Hazeii Hay.
    David M. Tyler, Detroit, Mich., for Bryan Steam.
    Thomas M. O’Leary, Detroit, Mich., for appellees; Plunkett, Cooney, Rutt & Peacock, by Jeannette A. Paskin, Detroit, Mich., on brief.
    Before EDWARDS and McCREE, Circuit Judges, and CECIL, Senior Circuit Judge.
   PER CURIAM.

This is an appeal by Charles Hull, plaintiff-appellant, from a judgment of no cause of action by the United States District Court for the Eastern District of Michigan, Southern Division. The plaintiff brought an action against Holiday Inns of America, as defendant, to recover damages for injuries alleged to have been sustained by excessively hot water in the bath tub of a Holiday Inn in Detroit, Michigan. Holiday brought in other parties as third party defendants but this opinion will involve only the plaintiff and defendant as briefed by the parties.

The plaintiff had been a guest of the Inn in question for thirty-five days and on the morning of September 11, 1967 he undertook to take a bath in the bath tub. He turned on the hot water, only, and in attempting to test the temperature of the water while sitting on the edge of the tub, he slipped in the tub and sustained the injuries of which he complains. The plaintiff received severe burns to his right hand and right buttocks.

It is claimed on behalf of the plaintiff that the water in the bathtub was excessively hot, of a temperature in excess of what is regarded as safe for such use and that the defendant violated its duty to maintain its premises in a reasonably safe condition for plaintiff, as an invitee. The severity of plaintiff’s injury is not in question. It was admitted for the purpose of the motion for a directed verdict that if the defendant supplied water in excess of 150° F. to plaintiff’s room for bath purposes it would have been in excess of that customarily permitted and regarded as safe.

The district judge in granting the motion for judgment of no cause of action held that the plaintiff had failed to offer evidence that the temperature of the water was in excess of 150° F. or that the defendant had violated its duty toward plaintiff to maintain its premises in a reasonably safe condition.

In considering a motion for a directed verdict the judge must consider all of the testimony in the light most favorable to the plaintiff. Lones v. Detroit, T. & I. R. Co., 398 F.2d 914 (C.A. 6) cert. den. 393 U.S. 1063, 89 S.Ct. 714, 21 L.Ed.2d 705; Serratoni v. Chesapeake and Ohio Ry. Co., 333 F.2d 621, 626 (C.A.6) cert. den. 379 U.S. 960, 85 S.Ct. 648, 13 L.Ed.2d 555; Kravat v. Indemnity Insurance Company of North America, 152 F.2d 336 (C.A. 6); Hinton v. Dixie Ohio Exp. Co., 188 F.2d 121, 124 (C.A. 6).

Obviously, there is no evidence available of the exact temperature of the water at the time the plaintiff fell into the tub and received his injuries. Mechanically, there was a separate boiler to furnish hot water to the rooms of the motel. The gauge on it was set at 180° F. There is a Holby Mixing Valve which mixes the hot water as it comes from the boiler with cold water to a proper temperature for the rooms. There is a gauge or thermometer on this Mixing Valve to regulate the temperature of the water that goes to the rooms. There is no evidence of the temperature at which that gauge or thermometer was set. There was also a limit switch which was supposed to cut off when the water got up to a certain temperature. There is no evidence of the temperature setting of it or whether it was functioning.

Dr. Joseph D. Carlysle, a plastic surgeon who treated the plaintiff, testified that the nature of plaintiff’s burns were such as might be received in water of 180° F. in thirty seconds. He did not testify whether such burns could be received in water of a temperature of 150° F. or less or how long it would take to get such burns as the plaintiff had in water of 150° F. or less.

The plaintiff testified that he turned on the hot water and sat on the side of the tub. When he reached over to test the water with his hand, he slipped and fell into the tub. He caught himself on his right hand and right hip and as he went down he bumped his head on something which caused a bump on his head as reported by the hospital. To extricate himself he reached for the basin, which was right by the tub, with his left hand and pushed himself out with his hand and hip. In the process he knocked a glass off of the basin which broke on the side of the tub and caused some cuts on the left hip and left buttocks.

He testified further that he was in a daze and didn’t know exactly how long he was in the water. He said he got up as fast as he could and estimated that he was in the water seven, eight or ten seconds.

Dr. Carlysle testified,
“The infliction of' a burn depends on the temperature of the agent, the duration that the patient is in contact with the agent, and also the area of the skin involved, and even the age of the patient.”
-x- -x- -x- * -x- *
“To have these burns inflicted, the water would, in my opinion, would have to be excessively hot- — as I said before, in excess of 150, and even approaching ranges of 180 and above.”

On cross examination he testified that at 135° F. one might receive burns corn-parable to the ones the plaintiff had in five minutes.

Thus, a crucial fact in the case is the length of time the plaintiff was in the'water. We consider that the jury is entitled to draw inferences from the physical facts as well as the oral evidence. We conclude from the fact that only the plaintiff’s right hand and right buttocks were burned the jury might well infer that no other part of his body was in the water and that he could not have remained in that position over a few seconds which would indicate that the water was excessively hot.

Counsel for the defendant argues that the plaintiff was guilty of contributory negligence as a matter of law. The district judge did not decide this question. We consider, however, that it is a question for the jury to decide under all of the facts of the case.

Judgment reversed and the case is remanded to the District Court for trial to a jury.

      . It was undisputed that a safe temperature o water for rooms in a motel or hotel was 140° F., plus or minus five or ten degrees.


author: PER CURIAM:

text:
    Jacob W. BLASDEL and Ruth Alice Blasdel, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 73-1284
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 21, 1973.
    John A. Bailey, Houston, Tex., for petitioners-appellants.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Tax Div., U. S. Dept, of Justice, Lee H. Henkel, Jr., Chief Counsel, I. R. S., Washington, D. C., for respondent-appellee.
    Before GEWIN, COLEMAN and MORGAN, 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:

This is an appeal from the United States Tax Court, 58 T.C. 1014. It involves a determination of whether certain interests conveyed from the appellants to the donees are “future interests” and therefore not entitled to the $3,000 annual gift tax exclusion. We affirm the decision below.

In 1967, appellants transferred 290 acres of farm land to the Edgewood Farm Trust and named themselves as beneficiaries. They then executed gift agreements transferring fractional shares of their interests in the trust to eighteen family members (their children, the children’s spouses, and their grandchildren). The farm land had generated very little income, so the trust was created to allow the trustee to sell the land in small parcels and distribute the proceeds to the twenty beneficiaries. But under the Powers of the Trustee, § VII of the trust instrument provided:

“The trustee shall make periodic disbursements of the income and corpus of the trust, provided that all beneficiaries of the trust are in accord and unanimously agree that such distribution be made. Should it not be possible to obtain unanimous approval of all the beneficiaries, and should a majority of the beneficiaries be desirous that a distribution be made, the trustee will be authorized to make such distribution provided that it be authorized by a majority vote of the members of the Board of Directors of the Rosenberg State Bank.”

On the authority of Ryerson v. United States, 312 U.S. 405, 61 S.Ct. 656, 85 L.Ed. 917 (1941), and Howe v. United States, 7 Cir., 1944, 142 F.2d 310, the Tax Court held that the disbursement of income and corpus conditional on (1) unanimous agreement of the twenty beneficiaries, or (2) majority approval of the beneficiaries and majority approval of the directors of a local bank constituted “future interests in property” within the meaning of § 2503(b), I.R.C. 1954.

Since the receipt of income is contingent upon an event, the language in Chanin v. United States, 1968, 393 F.2d 972, 183 Ct.Cl. 840 is applicable:

“Unless the donee is entitled unconditionally to present use, possession, or enjoyment of property transferred, gift is one of future interest for which no gift tax exclusion is operable”. [Emphasis added]

The judgment of the Tax Court is

Affirmed.


author: ESTES, District Judge:

text:
    AMERICAN FIRE & CASUALTY COMPANY, Plaintiff-Appellant, v. STEWART-SNEED-HEWES, INC., Defendant-Appellee.
    No. 72-2797.
    United States Court of Appeals, Fifth Circuit.
    May 17, 1973.
    Rehearing Denied June 13, 1973.

      David L. Cobb, Harry R. Allen, Gulf-port, Miss., for plaintiff-appellant.
    Rae Bryant, Gulfport, Miss., for Thompson & Stewart, and others.
    Hollis C. Thompson, Jr., Gulfport, Miss., for Thompson.
    Before COLEMAN and SIMPSON, Circuit Judges, and ESTES, District Judge.
   ESTES, District Judge:

American Fire and Casualty Company, claiming that its former agent, Stewart-Sneed-Hewes, Inc. (SSH), issued an insurance policy against the instructions of American Fire, brought this suit to obtain reimbursement from SSH for a $14,694.00 payment American Fire made for a claim on that policy. The jury found for the defendant, and American Fire appeals the trial judge’s denial of its motions for a directed verdict and judgment notwithstanding the verdict.

In 1969, SSH, an independent insurance agent, was authorized to write insurance on American Fire, as well as on many other insurance companies, in the area of Gulfport, Mississippi. The agency contract between American Fire and SSH provided that all policies would be written in accordance with the manuals and written instructions of American Fire issued to SSH, and that SSH would be liable for any loss sustained by American Fire due to any negligent delay in compliance with such instructions by SSH.

On June 3, 1969, Tom Rowe, the vice president of American Fire’s Property Division, sent the following letter to SSH concerning a policy issued for Gold-in & Schwartz, Inc.:

“We have just received this builders risk which is being processed, but would like to remind you that we prefer not to write any further builders risk for the balance of this summer. This, of course, is due to the present windstorm season, etc. We would appreciate your marking your files to this effect.” [emphasis added]

On June 5,1969, Mrs. Cecile Price, who was then a clerk in the property section of SSH, responded with the following note:

“With regard to your note about the above risk [the Goldin & Schwartz policy], the Builder’s Risk is to be can-celled as of this date — and we will abide by your request concerning B. Risks through the summer — ”

It appears from the record that SSH did not write any more builders risk insurance on American Fire until August 15, 1969, when a builders' risk policy was issued to Continental Construction Company for an apartment construction project, then sixty percent complete. The residents of Gulfport were then aware of the presence of Hurricane Camille in the Gulf of Mexico; however, the hurricane had not reached the longitude and latitude at which the writing of property insurance would be suspended. Three days later, Hurricane Camille struck Gulfport, causing extensive damage, including damage to the Continental apartment project. American Fire received the notice of loss from Continental at approximately the same time it received its notification that the policy had been issued by SSH.

In a letter dated September 4, 1969, Rowe asked J. C. Thompson, president and an agent of SSH, to advise him about this policy, since “[i]t was agreed by your office quite some time ago that we would not write any other builders’ risks during the storm season. . . . ” Thompson replied by letter on September 16, 1969, that “it is quite obvious that this office did not follow your instructions.” Thompson took the responsibility for the situation, but stated that neither he nor Sessions Hootsell, vice president and an agent of SSH, had seen the June 3 letter, and that many builders risk policies were placed by SSH without an agent instructing the clerk on which specific insurance company the policy should be written.

American Fire subsequently paid Con- ’ tinental $14,694.00 for damage to the insured project covered by the policy. It now seeks reimbursement from SSH for the loss, alleging SSH is liable to American Fire for failing to follow Ameidcan Fire’s instructions.

The jury having found the facts adversely to American Fire, American Fire appeals the trial court’s denial of its motions for a directed verdict and subsequently for a judgment notwithstanding the verdict. Appellant contends that its motions should have been granted because the evidence overwhelmingly proved that its June 3 letter contained written instructions to SSH not to write any builders risk insurance on American Fire throughout the summer, or even if SSH was not bound by the June 3 letter, it was bound by the June 5 response of Mrs. Price, who acted with actual or apparent authority to so bind SSH.

The standard for deciding motions for a directed verdict or a judgment notwithstanding the verdict was clearly stated in Boeing Company v. Shipman, 411 F.2d 365, 374 (5 Cir. 1969). If, upon considering all the evidence, the trial court determines that “the facts and inferences point so strongly and overwhelmingly in favor of one party . . . that reasonable men could not arrive at a contrary verdict,” it should grant the motions. If there is substantial evidence opposed to the motions, so that “reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied. . . . ”

With regard to its contention that its June 3 letter contained a written instruction for SSH not to write any more builders coverage during the summer months, American Fire points to the voluntary cancellation of the Goldin & Schwartz policy, by SSH and Thompson’s statement in the September 16 letter that SSH “did not follow your instructions.” [emphasis • supplied] However, both Thompson and Mrs. Price, the witnesses who testified concerning the instruction issues, asserted that the June 3 letter contained only a “preference,” not an “instruction.” They also testified that in the insurance practice, an independent agent would attempt to follow a company’s preference, but when the agent considered it necessary to serve a person seeking insurance, he would write insurance on a company contrary to its preference. Furthermore, SSH introduced into evidence, to show the strong language of an instruction, a 1966 American Fire bulletin to its agencies which read, “Effective immediately, we will not entertain any coverage on a restaurant account that does not have an approved type extinguishing system currently installed.” [emphasis added] In view of the conflicting evidence, we cannot say that reasonable men could not conclude that American Fire’s June 3 letter expressed merely a preference instead of an instruction.

The evidence concerning Mrs. Price’s actual or apparent authority to so bind SSH by her June 5 note is also conflicting. Mrs. Price was a clerk with SSH and as such had no authority herself to limit the type of insurance the agents could write; only an agent could do that. There was testimony that Mrs. Price obtained the approval of one of the SSH agents to reissue the Goldin & Schwartz policy and to write a note to American Fire to inform it of the reissuance; however, there was also evidence to the effect that in the SSH office clerks would prepare the paper work for a reissuance of insurance for a wide variety of reasons and present the proposed reissuance to an agent without necessarily informing the agent of the specific reason for reissuance. Because there could be a multitude of reasons for reissuing insurance, the agents. directed their concern toward the accuracy of the new policy in a reissuance instead of determining the reason for reissuance. Hence, reasonable men could conclude that Mrs. Price had obtained approval for the reissuance of the Goldin & Schwartz policy by an agent without specifically informing the approving agent that American Fire preferred not to write any more builders risk insurance during the summer and without obtaining authority from the agent to bind SSH not to issue any such insurance on American Fire.

As to Mrs. Price’s apparent authority, she did correspond with American Fire as part of her duties as clerk. If she had been authorized by an agent to do so, she could have bound SSH by her June 5 letter, and, furthermore, American Fire was not able to tell from the June 5 letter itself that she had not obtained such authority from an agent. However, it is uncontroverted that American- Fire, through its vice president Rowe, knew Mrs. Price was a clerk, not an agent, and had no personal authority to bind SSH. No evidence was presented to show that Mrs. Price’s previous correspondence with American Fire included instances in which she was authorized to limit the insurance which SSH agents could write. Appellant had the burden of proving Mrs. Price’s authority or apparent authority. United States Fidelity & Guaranty Co. v. Arrington, 255 So.2d 652 (Miss.1971). The evidence appellant produced was not so overwhelming that reasonable men must conclude that American Fire could rely upon Mrs. Price’s statement as being authoritative.

After reviewing all the evidence in the record, we find there was ample evidence to support the jury findings and that the district judge properly denied the motions for directed verdict and judgment notwithstanding the verdict. The judgment is

Affirmed.

       At the time of the trial, Mrs. Price was no longer employed by SSH.


text:
    KUNSTSAMMLUNGEN zu WEIMAR, Plaintiff-Appellant, v. Edward I. ELICOFON, Defendant-Appellee. FEDERAL REPUBLIC OF GERMANY, Plaintiff Appellee, v. Edward I. ELICOFON, Defendant-Appellee, Elisabeth Mathilde Isidore Erbgrossher-zogin von Sachsen-Weimar-Eisenach (Grand Duchess of Saxony-Weimar), Plaintiff-Intervenor-Appellee, Kunstsammlungen zu Weimar, Proposed Plaintiff-Intervenor-Appellant.
    Nos. 748-749, Dockets 72-2305-2306.
    United States Court of Appeals, Second Circuit.
    Argued April 24, 1973.
    Decided April 25, 1973.
    Harry I. Rand, New York City (Lawrence M. Kaye, Botein, Hays, Sklar & Herzberg, New York City, on the brief), for proposed plaintiff-intervenor-appel-lant.
    Richard W. Hulbert, New York City (Cleary, Gottlieb, Steen & Hamilton, New York City, on the brief), for defendant-appellee Elicofon.
    Albert D. Jordan, New York City (Elliot Paskoff, Horst Kurnik and Valicen-ti, Leighton, Reid & Pine, New York City, on the brief), for defendant-appel-lee Federal Republic of Germany.
    Herbert Strong, New York City, for plaintiff-intervenor-appellee Duchess of Saxony-Weimar.
    Before BREITENSTEIN KAUFMAN and MANSFIELD, Circuit Judges.

       Of tlie United States Court of Appeals for the Tenth Circuit, sitting by designation.

   PER CURIAM:

On January 27, 1969, the Federal Republic of Germany brought suit in the district court for the Eastern District of New York against Edward Elicofon, a New York resident, to recover two valuable paintings by the renowned artist Albrecht Duerer, alleged to have been stolen in 1945 from Schwartzburg Castle in Germany during the American Occupation. The Federal Republic asserts that the paintings, executed in the year 1499, are the property of the German people, having been in the possession of a state museum at the time of theft, and that it is the only government that may properly represent the German people in an American court. On March 25, 1969 the Grand Duchess of Saxony-Weimar was granted leave to intervene, based on a claim that the Duerer masterpieces have been part of the collection of the Grand Duke of Saxony-Weimar since 1824 and that title to the paintings rests in her through an assignment from the Grand-Duke.

On April 14, 1969, the Kunstsamm-lungen zu Weimar (Weimar Art Collection), an entity existing under the laws of the German Democratic Republic, sought leave to intervene, and brought a separate action against Elicofon for return of the paintings. The Kunstsamm-lungen asserts that it has custody over the art collection from which the paintings allegedly were stolen and is, accordingly, the rightful owner of the Duerer works.

The motion to intervene was opposed by all parties, and Elicofon moved to dismiss the separate action brought against him by the Kunstsammlungen zu Weimar. In essence the Federal Republic of Germany, the Grand Duchess and Mr. Elicofon took the position that the Kunstsammlungen Zu Weimar is an arm and agency of the German Democratic Republic, a government not recognized by the United States, and as such is without standing to sue in American courts. In addition, the United States Department of Justice, acting in behalf of the Department of State, filed a “Suggestion of Interest of the United Stated” indicating the following.

1. The United States Government does not recognize the East German regime.
2. The United States Government recognizes the Federal Republic of Germany as the only German Government entitled to speak for Germany as the representative of the German people in international affairs.
3. The United States Government recognizes the Federal Republic of Germany as entitled in this litigation to represent the Weimar Museum as trustee of its interests.

In an opinion filed on June 25, 1970, Chief Judge Mishler ruled that the German Democratic Republic would not be entitled to sue in its own right to recover the two Duerer paintings. Following an evidentiary hearing, Chief Judge Mishler ruled, in an opinion filed September 26, 1972, that the Kunstsamm-lungen zu Weimar was an arm and agency of the German Democratic Republic and, as such, was barred from suit. Accordingly, leave to intervene was denied and the motion to dismiss made by Elicofon was granted. This appeal followed.

We affirm for the reasons given in Chief Judge Mishler's two opinions, reported at 358 F.Supp. 747 (E.D.N.Y.1973). Moreover, we find no merit in the argument advanced here that the Kunstsammlungen zu Weimar is an arm of the government of the Union of Soviet Socialist Republics and therefore an agency of a recognized government previously granted litigant status.


text:
    Daniel H. SHUMATE, Appellant, v. The BOARD OF EDUCATION OF the COUNTY OF JACKSON, a corporation, et al., Appellees.
    No. 73-1139.
    United States Court of Appeals, Fourth Circuit
    Submitted April 16, 1973.
    Decided May 4, 1973.
    Charles R. McElwee and John C. Palmer, IV, Charleston, W. Va., on brief for appellant.
    Joseph C. Hash, Jr., Pros. Atty., Ripley, W. Va., on brief for appellees.
    Before HAYNSWORTH, Chief Judge, and SOBELOFF and BOREMAN, Senior Circuit Judges.
   PER CURIAM:

Daniel H. Shumate brought this suit under 42 U.S.C. § 1983, seeking reinstatement as a public school teacher and damages against the Board of Education of Jackson County, West Virginia. The complaint alleged that the Board’s failure to re-employ him for the 1972-73 school year “was arbitrary, malicious and without legal cause and was based upon or resulted from the exercise by the plaintiff of rights guaranteed by the First Amendment to the Constitution of the United States * * In response to the defendants’ motion the district court, 350 F.Supp. 1315, dismissed the complaint for failure to state a claim upon which relief can be granted. We cannot agree. We reverse and remand this case for trial on the merits.

Shumate was an art teacher at a high school in Jackson County, West Virginia, employed in his third year of teaching under a probationary contract. ******Assuming he met the statutory requirements he was eligible for a “continuing contract,” providing teacher tenure, beginning with the fourth year. In his complaint Shumate alleged that although he was a competent teacher and satisfied the requirements for a fourth year contract, the school board refused to grant the contract because of his controversial activities as a member and president of the Jackson County Education Association. This refusal, he says, was intended to punish and deter him from exercising his first amendment rights, including the rights of freedom of association, speech, thought and inquiry.

In dismissing the complaint, the district court recognized that Shumate stated claims of violation of constitutional rights, but proceeded on the theory that the school board merely allowed his probationary contract to expire and was under no obligation to renew it. The court correctly noted that the board took no affirmative action revoking the contract nor did it condition renewal on some restrictive prerequisite. Thus, since Shumate did not have a tenured status, the district court reasoned he had no rights to vindicate and the school board could not be liable under section 1983.

We think such a conclusion is contrary to the recent Supreme Court decision of Perry v. Sindermann, 408 U. S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Just as Shumate’s contract was allowed to expire, so was Sindermann’s. While failure to renew a contract may not be an affirmative action, it was in each case a deliberate inaction. As it was with Sindermann, the critical question here is whether the board’s decision not to renew Shumate’s contract was made in retaliation for his exercise of his free speech rights. The absence of any contractual or tenure right does not affect Shumate’s constitutional claims. Id. at 596, 92 S.Ct. 2694. See also Chitwood v. Feaster, 468 F.2d 359 (4th Cir. 1972).

This is not to say that a school board may not decline to renew such a teacher’s contract for a good reason or for no reason. It may not do so for a bad reason if the bad reason is retribution for one’s lawful exercise of constitutionally protected rights.

Therefore, we hold that a claim grounded on 42 U.S.C. § 1983 and based on the allegation that the county school board has denied employment to a public school teacher solely because of his exercise of his constitutional free speech rights will, if proven, entitle Shumate to relief.

Accordingly, the board’s motion for summary affirmance is denied. The motion for summary reversal is granted and the judgment of the district court is reversed and the case is remanded for proceedings consistent with this opinion.

Reversed and remanded.

      . W.Va.Code Ann. § 18A-2-2 (Replacement Vol. 1971) provides:
      A teacher’s contract under this section, shall be for a term of not less than one nor more than three years; and if, after three years of such employment, the teacher who holds a professional certificate, based on at least a bachelor’s degree, has met the qualifications for the same, and the board of education enter into a new contract of employment, it shall be a continuing contract:

      . The district court distinguished this action from similar cases in which school officials had “acted affirmatively pursuant to state law to make effective certain conditions prerequisite to continued teacher employment.” See Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) ; Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) ; Shelton v. Tucker, 364 U.S. 471, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).


author: HAYS, Circuit Judge:

text:
    GREAT AMERICAN INSURANCE COMPANY et al., Appellants, v. BUREAU VERITAS, Appellee.
    Nos. 541, 542, Dockets 72-1422, 72-1423.
    United States Court of Appeals, Second Circuit.
    Argued March 14, 1973.
    Decided May 9, 1973.
    Charles S. Haight, Jr., (Haight, Gardner, Poor & Havens, New York City, on the brief), for appellants Great American Ins. Co., American Manufacturers Mutual Ins. Co., Aetna Ins. Co., and Hartford Fire Ins. Co.
    Walter L. Hopkins, New York City (William A. Wilson, Wilson & Hopkins, New York City, on the brief), for appellants World Tradeways Shipping, Ltd. and The Steamship Mutual Underwriting Ass’n Limited.
    Edwin Longcope, New York City (John F. X. McKiernan, Hill, Betts & Nash, New York City, on the brief), for appellee.
    Before HAYS, MULLIGAN and OAKES, Circuit Judges.
   HAYS, Circuit Judge:

This is an appeal from a decision of the United States District Court for the Southern District of New York dismissing the complaint which sought to recover from appellee, a classification society, damages occasioned by the sinking of a ship, the TRADEWAYS II, in the North Atlantic in October, 1965, shortly after her departure from Antwerp, Belgium, bound for the United States.

The first group of appellants consists of the Great American Insurance Company, the American Manufacturers Mutual Insurance Company, the Aetna Insurance Company and the Hartford Fire Insurance Company, insurers of the charterer of the TRADEWAYS II. They will be referred to as the “Great American group.” The second group of appellants is made up of World Tradeways Shipping Ltd. and Steamship Mutual Underwriting Assoc. Ltd., respectively, the owner and the underwriter of the TRADEWAYS II.

The Great American group sued Bureau Veritas, the classification society which surveyed the TRADEWAYS II before it departed from Antwerp, for negligence and breach of warranty. They sought indemnification by way of subro-gation for the amounts which they, as insurers of the charterer, paid out in compromise of the claims asserted against the charterer as a result of the loss of the ship. A second suit was commenced by the owner and underwriter of the ship against Bureau Veritas for indemnification for sums paid out on their behalf. The two suits were consolidated for trial and for appeal.

The trial was limited by agreement of the parties to the issue of liability. The court had before it a stipulation of undisputed facts, numerous exhibits that were for the most part agreed upon by the parties prior to trial, and the testimony of witnesses as to the facts and of expert witnesses. The court dismissed the complaints of both groups of plaintiffs, 338 F.Supp. 999 (S.D.N.Y.1972), saying:

“Insofar as plaintiffs have failed to meet their burden of proving by a preponderance of the evidence that the alleged breach of warranty or duty was the proximate cause of the sinking, that there were in fact breaches of either warranty or duty, or that the principles of either tort or contract law would entitle them to recovery, judgment is entered in favor of the defendant.”

338 F.Supp. at 1002.

There was no direct evidence that the defects surveyed and reported by Bureau Veritas but left unrepaired caused the sinking of the TRADE-WAYS II. Weighing such evidence as there was the district court came to the conclusion that appellants had failed to establish a causal relationship between Bureau Veritas’ negligence and the loss of the TRADEWAYS II. No sufficient reason is advanced to justify our disregard of the court’s findings as to causation. Therefore, even assuming the classification society was negligent, appellants cannot recover. See In re Marine Sulphur Transport Co., 460 F.2d 89, 101 (2d Cir.), cert. denied, 409 U.S. 982, 93 S.Ct. 326, 34 L.Ed.2d 246 (1972).

On appeal, the appellants assert that even if they failed to establish that the negligence of Bureau Veritas caused the sinking of the ship, they should recover on the ground that Bureau Veritas’ negligence in not denying classification in the presence of the report reciting the unrepaired defects in the vessel created such a, risk of liability that appellants were justified in settling the cargo claim.

However, appellants did not have to assume the risk of liability. They could have vouched in Bureau Veritas to defend the cargo claims and thus secured a test of Bureau Veritas’ liability. Having chosen not to adopt that course they cannot now complain of the holding in their independent suit that Bureau Veritas’ negligence was not proved to be the cause of the loss. See Damanti v. A/S Inger, 314 F.2d 395 (2d Cir.), cert. denied, 375 U.S. 634, 84 S.Ct. 46, 11 L.Ed.2d 64 (1963).

      . Nimpex International, Inc., the subvoyage charterer of Midland, sued both Midland and World Tradeways for cargo loss, seeking damages in excess of one million dollars. On the advice of counsel, the claim was settled for $220,000. Of this amount, the Great American group paid $130,000 on behalf of Midland and the owner and underwriter paid $90,000.