author: IRVING R. KAUFMAN, Chief Judge:

text:
    UNITED STATES of America ex rel. Leon NEWSOME, Petitioner-Appellee, v. Benjamin J. MALCOLM, New York City Commissioner of Correction, et al., Respondents, Louis J. Lefkowitz, Attorney General of the State of New York, Intervenor-Respondent-Appellant.
    No. 693, Docket 73-2413.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 11, 1974.
    Decided Jan. 28, 1974.

      Robert S. Hammer, Asst. Atty. Gen. of the State of New York (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen. on the brief), for intervenorrespondent-appellant.
    Stanley Neustadter, New York City (William J. Gallagher, The Legal Aid Society, New York City, on the brief), for petitioner-appellee.
    Before KAUFMAN, Chief Judge and SMITH and FEINBERG, Circuit Judges.
   IRVING R. KAUFMAN, Chief Judge:

This appeal presents the rare instance where by granting a writ of habeas corpus to a state prisoner we intrude less into local administration of criminal justice than if we were to follow the contrary course suggested by the state Attorney General. Judge Bruchhausen granted Leon Newsome’s petition pursuant to 28 U.S.C. 2254 because the loitering statute under which Newsome was arrested has been declared unconstitutional by the New York Court of Appeals. Since Newsome is collaterally attacking a conViction not for loitering, but for a narcotics violation arising from evidence seized at the time of his arrest for loitering, his petition raises an interesting question of Fourth Amendment law. We agree with the New York Court of Appeals in its evaluation of the loitering statute and, because of the particular constitutional infirmities involved, are compelled to, conclude that the writ should issue. We affirm.

I. FACTUAL BACKGROUND

The essential facts are not in dispute and can be related briefly. On February 12, 1970, New York City Housing Authority Policeman Warren J. Ungar and a fellow officer responded to an anonymous telephone call “to the effect that someone was in the hallway” of a City Housing Authority dwelling at 81-OS Hammel Boulevard, Queens, New York. The patrolmen entered the building at approximately 10:20 p.m. and immediately approached two men — Leon Newsome and an unidentified companion —who were standing in the lobby near the main doorway. In response to Un-gar’s questions, Newsome said he had just entered the building. When New-some was unable to produce identification, he was arrested for loitering (N.Y. Pen.L. 240.35(6), McKinney’s Consol. Laws, c. 40) and searched incident to that arrest. Patrolman Ungar placed Newsome against the wall and “went through the pockets.” This search produced a closed black leather pouch in which Ungar found a functional hypodermic instrument and a glassine envelope later determined to contain 2 grains of heroin. Accordingly, Newsome was also charged with possession of dangerous drugs (N.Y.Pen.L. 220.05) and criminal possession of a hypodermic instrument (N.Y.Pen.L. 220.45).

After a brief nonjury trial before Criminal Court Judge Nicholas Tsouca-las on April 7, 1970, Newsome was convicted for loitering. Judge Tsoucalas immediately proceeded to conduct a hearing on Newsome’s motion to suppress the evidence seized at the time of his arrest. Newsome raised and Judge Tsoucalas rejected the same claims at trial and on the motion to suppress: that the patrolmen did not have probable cause to arrest Newsome for loitering and that the loitering statute was unconstitutional and could not therefore serve as the basis for searches incident to arrests.

On May 7, 1970, the date scheduled for a trial on the drug charges, Newsome appeared before Judge Abraham Roth and withdrew his prior pleas of not guilty and pleaded guilty to the lesser charge of “attempted possession of dangerous drugs” (N.Y.Pen.L. 110.-05(6)). He was sentenced immediately to 90 days in the City Reception Center, and received an unconditional release for the loitering conviction. The minutes of the May 7 proceedings clearly disclose Newsome’s intention to appeal both the loitering conviction and, pursuant to N.Y.Code Crim.P. 813-c the denial of his motion to suppress. Indeed, at the close of proceedings on May 7, Judge Roth granted a certificate of reasonable doubt (N.Y.Code Crim.P. 527) because “there is a question of law involved here, very serious question of law, with regard to the loitering charge.” On direct appeal to the Appellate Term, the loitering conviction was reversed for insufficient evidence; but because the court found that probable cause existed to arrest New-some for loitering, the search incident to that arrest was held valid and the drug conviction affirmed. Leave to appeal to the New York Court of Appeals was denied and a petition for a writ of certiorari was denied sub nom. Newsome v. New York, 405 U.S. 908, 92 S.Ct. 970, 30 L.Ed.2d 779 (1972). The instant petition for a writ of habeas corpus was filed on April 6, 1972, just five days before Newsome was to begin serving his 90 day sentence (imposition of which had been stayed pending appeal).

On July 2, 1973, prior to Judge Bruchhausen’s final disposition on the merits, the New York Court of Appeals in a well-reasoned opinion declared § 240.35(6) unconstitutional on its face because, among other infirmities, it was overly vague. People v. Berck, 32 N.Y.2d 567, 347 N.Y.S.2d 33, 300 N.E.2d 411 (1973), cert. denied sub nom. New York v. Berck, 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550 (1973). On July 12, 1973, Judge Bruchhausen granted the writ. The New York State Attorney General, who had not appeared in prior proceedings in this case, requested and was granted leave to intervene as a respondent on the present appeal.

II. STANDING

As a threshold issue, the Attorney General raises the not unfamiliar claim that Newsome is without standing to pursue his underlying constitutional attacks on the drug conviction because those claims were waived when Newsome pleaded guilty. Ordinarily, it is true that an intelligent and voluntary guilty plea waives a defendant’s right to trial and all claims of constitutional infirmities in the prosecution, which could have been raised at trial. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). But in McMann v. Richardson the Supreme Court noted that an exception to the general waiver rule exists where state law permits a defendant to retain his collateral claims after pleading guilty. 397 U.S. at 766, 90 S.Ct. 1441. New York is one of those states which permit a defendant to appeal specified adverse pretrial rulings even though he subsequently pleads guilty. The operative statutory provision at'the time Newsome pleaded guilty was N.Y.Code Crim.P. 813-c, which stated: “the order denying [a motion to suppress] evidence may be reviewed on appeal from a judgment of conviction notwithstanding the fact that such judgment of conviction is predicated upon a, plea of guilty.”

We have characterized the New York procedure as “enlightened” for it permits a defendant whose sole defense is one of the specified constitutional claims neither to suffer nor impose on the state the burden of going to trial simply to preserve his claim — a procedure which precipitated the enactment of § 813-c. See United States ex rel. Rogers v. Warden, 381 F.2d 209, 214 (2d Cir. 1967). This new procedural device manifested obvious legislative determinations that trials are not to be encouraged in order to preserve a ground for appeal and that guilty pleas in such cases would aid in avoiding additions to beleaguered trial calendars. Accordingly, the rule in this circuit is well established that a New York defendant who has utilized § 813-c in the state courts may pursue his constitutional claim on a federal habeas corpus petition, for “it would be anomalous if a defendant by scrupulously following a sanctioned and reasonable state procedure for preserving his federal constitutional claims on appeal in state courts, simultaneously waived his right to present these same claims to a federal court . . . because he was lulled into following state procedures.” Id. at 214-215. See United States ex rel. Stephen J. B. v. Shelly, 430 F.2d 215, 217 & n. 3 (2d Cir. 1970); United States ex rel. Molloy v. Follette, 391 F.2d 231 (2d Cir. 1968).

The Attorney General, despite our clear pronouncements on the issue, contends again, as he did in Molloy and Stephen J. B., that we should abandon the rule first announced in Rogers and close the avenue of federal habeas to state petitioners who have entered pleas of guilty under the circumstances we have recounted. Again, we reject this argument and reaffirm our view that where state law permits a defendant to plead guilty without forfeiting his appeals on collateral constitutional claims, it would be a trap to the unwary if a defendant who waived his right to trial in reliance on the state appeal procedures was thereafter precluded from pressing his federal constitutional claims in the district court. We believe, moreover, that were we to nullify the vitality of § 813-c and similar statutes for federal habeas corpus purposes, most defendants with competent counsel would be dissuaded from pleading guilty and instead would proceed to trial for the sole purpose of preserving claims for potential vindication on state review or federal habeas. The New York legislature passed § 813-c to prevent precisely this eventuality and federal courts should be reluctant to interfere with a state’s administration of criminal justice, particularly when the result would be to add to its already congested criminal trial calendars. Accordingly, we refrain from confronting the state courts with a problem the legislature has attempted to ameliorate. We are of the view that the more appropriate forum for the Attorney General to express his dissatisfaction with § 813-c is the state legislature, not the federal courts.

As a final attack on our Rogers-Molloy-Stephen J. B. line of cases, the Attorney General contends that Tollett v. Henderson, supra, precludes all state prisoners who pleaded guilty from asserting collateral constitutional claims in federal habeas petitions — notwithstanding state procedures which allow the defendant to retain those claims for purposes of state post-conviction remedies. In our view, Tollett does not stand for this proposition. In Tollett a Tennessee prisoner attacked his 25-year-old conviction (entered after a guilty plea) for first degree murder on the ground that blacks were systematically excluded from the grand jury that indicted him. Tennessee had no procedure analogous to § 813-c for preserving constitutional claims after pleading guilty. The Supreme Court held that:

after a criminal defendant pleads guilty, on the advice of counsel, he is not automatically entitled to federal collateral relief on proof that the indicting grand jury was unconstitutionally selected. The focus of federal habeas inquiry is the nature of the advice and voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity.

411 U.S. at 266, 93 S.Ct. at 1607. To be sure, Tollett did not mention the exception cut out in McMann, and to which we have referred, for states which provide for the preservation of constitutional claims, but given the absence of this type of provision in Tennessee law, that question was not before the court in Tol-lett and repetition of the principle would have been superfluous. Accordingly, we refuse to undertake the hazardous task of elevating silence to the level of stare decisis. When, as here, a defendant enters a plea of guilty and then follows acknowledged state procedures for preserving his claims, the guilty plea does not act as an automatic waiver.

III. CONSTITUTIONALITY OF NEW YORK’S LOITERING STATUTE

Section 240.35 (6) provides:

A person is guilty of loitering when he: . . . Loiters, remains or wanders in or about a place without apparent reason and under circumstances which justify suspicion that he may be engaged or about to engage in crime, and, upon inquiry by a peace officer, refuses to identify himself or fails to give a reasonably credible account of his conduct and purposes.

We have noted that the New York Court of Appeals has already declared this provision unconstitutional on its face. People v. Berck, supra. In the instant proceeding, the Attorney General urges us, in effect, to instruct the state’s highest court that its evaluation of a state statute was erroneous. Since the state court grounded its decision on the federal rather than the state Constitution, we must make an independent determination of the applicable federal standards. See Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Accordingly, the question before us on this application for federal habeas corpus relief is whether the section violates due process. We conclude that it does.

When § 240.35(6) became effective on September 1, 1967, it represented New York’s formulation of a dragnet approach to the maintenance of public order that had its roots in feudal England and which has survived, despite considerable disapproval, in urban America. Originally conceived as a method to keep unemployed laborers from wandering between towns and terrorizing travelers, laws against vagrancy and loitering have been transformed into devices for preventing crime and for removing so-called nuisances — mobs and individual “undesirables”- — from public places. Despite the obvious governmental interest in preserving public order, a vagrancy-loitering statute will run afoul of the Constitution when its necessarily broad scope is stated in language so indefinite that it fails to:

“give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,” United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, and because it encourages arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066.

Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Moreover, because the crime prevention components of loitering statutes are aimed at suspected or potential rather than incipient or observable conduct, they may conflict with the deeply rooted Fourth Amendment requirement that arrests must be predicated on probable cause, Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). See Papachristou v. Jacksonville, supra; Palmer v. Euclid, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98 (1971). Indeed, it has been suggested that:

because the elements of the . offense are obscure, even officers engaged in its good faith effectuation cannot gauge justification for arrests consistently with Fourth Amendment principles.

Hall v. United States, 148 U.S.App.D.C. 42, 459 F.2d 831, 837 (1972) (en banc).

Turning from our brief discussion of the history and purposes of vagrancy legislation to the specific statute in issue, we must scrutinize the New York statute in accordance with the standard enunciated in Papachristou, Palmer, and Smith v. Florida, 405 U.S. 172, 92 S.Ct. 848, 31 L.Ed.2d 122 (1972). Under the first prong of the vagueness test (Papachristou v. Jacksonville, supra, 405 U.S. at 162, 92 S.Ct. 839, quoting, United States v. Harriss, supra, 347 U.S. at 617, 74 S.Ct. 808) we must determine whether the statute’s prohibitions are east in terms sufficiently precise to give a reasonably intelligent person notice of the conduct that is proscribed. See Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939). Newsome contends that the operative language is so indefinite that even a citizen who had “read and studied” the statute in an effort to regulate his behavior would be in a quandary. He suggests, moreover, that the linguistic imprecision is exacerbated because § 240.35(6) imposes criminal liability in the absence of criminal intent, a factor noted by the Supreme Court in Papachristou. 405 U.S. at 162, 92 S.Ct. 839. It is urged, therefore, that the elements of loitering may be established by suspicious circumstances of which a citizen may not be cognizant and for which he may bear no responsibility. The Attorney General asserts, on the other hand, that § 240.-35(6) can be distinguished from the statutes disapproved in Papachristou, Palmer, and Smith, because it “focuses upon specifically criminal conduct.”

On its face, the statute discloses that “loiter[ing]” “remain[ing]” or “wander [ing]” in an unspecified place for an unspecified period of time without apparent reason can establish the first element of the offense. Surely a citizen who sought to conform his conduct to this provision would be unable to discern whether he risked criminal responsibility by taking a leisurely stroll, by sitting briefly on a park bench, or by seeking shelter from the elements in the doorway of a building.

The second substantive component of the statute is established by “circumstances which justify suspicion that [a person] may be engaged or about to engage in crime.” Yet, such “circumstances” may reflect the “whim of the policeman,” People v. Berck, supra, 347 N.Y.S.2d at 38, 300 N.E.2d at 414, rather than the conduct of an individual who happened to “wander” into the midst of the police, thereby creating the “hazard of being prosecuted for knowing but guiltless behavior.” Baggett v. Bullitt, 377 U.S. 360, 373, 84 S.Ct. 1316, 1323, 12 L.Ed.2d 377 (1964). With nothing more, the “suspect” is hardly offered a bright line test for distinguishing the licit from the illicit.

Moreover, there are insufficient guidelines for enforcement and thus § 240.35(6) does not pass constitutional muster on this ground as well. The section permits arrests and convictions for suspicion or for possible crime based on circumstances less compelling than the reasonable and articulable factors which are required to sustain a mere on-the-scene frisk. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). It has been noted, and we agree, that the section could lend itself to the abuse of pretextual arrests of people who are members of unpopular groups or who are merely suspected of engaging in other crimes, without sufficient probable cause to arrest for the underlying crime. For example, in People v. Williams, 55 Misc.2d 774, 286 N.Y.S.2d 575 (New York City Crim.Ct.1967), the court commented that:

these defendants are 41 of a group of alleged prostitutes who have been arrested and detained 2500 times for disorderly conduct and loitering in New York City since August 18th This Court of its own knowledge is aware that except for a few isolated instances where defendants pleaded guilty, the disorderly conduct cases were dismissed. In many instances, “the girls” were arrested after 11:30 P.M., too late to be arraigned, night court had been adjourned, then kept overnight in a cell. In the morning they were brought to Court and released because the offenses for which they had been arrested could not be proven to have been committed by them.

286 N.Y.S.2d at 577. See Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like, 3 Crim.L.Bull. 205, 220-28 (1967); Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L.J. 1, 8 (1960); Lacey, Vagrancy and Other Crimes of Personal Condition, 66 Harv.L.Rev. 1203, 1219-24 (1953). See also Winters v. New York, 333 U.S. 507, 540, 68 S.Ct. 665, 92 L.Ed. 840 (1948) (Frankfurter, J., dissenting).

To the extent the statute can be interpreted to support dragnet, street-sweeping operations absent probable cause of actual criminality, it conflicts with established notions of due process. Beck v. Ohio, supra; Henry v. United States, supra; Wong Sun v. United States, 371 U.S. 471, 479-482, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Even in the absence of purposeful circumvention of traditional standards for lawful arrests, § 240.35(6) confers discretion that is simply too unbridled to satisfy due process standards. The “infirmity” lies in the imprecision of the statute, not the subjective intent of enforcement officials. The Supreme Court has noted, “ [w] ell-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law.” Baggett v. Bullitt, supra, 377 U.S. at 373, 84 S.Ct. at 1323.

Applying the standards enunciated in Papachristou, Palmer, and Smith, we conclude, as did the New York Court of Appeals in Berck, that § 240.35(6) contravenes the Due Process Clause of the Fourteenth Amendment not only because it fails to specify adequately the conduct it proscribes, but also because it fails to provide sufficiently clear guidance for police, prosecutors, and the courts so that they can enforce the statute in a manner that is consistent with the Fourth Amendment. Accordingly, Newsome’s arrest pursuant to that section was unlawful.

IV. SEARCH INCIDENT TO ARREST

Having concluded that New-some’s arrest pursuant to an unconstitutional statute was unlawful, we turn our attention to whether the search conducted incident to that arrest was also unlawful. For the reasons set forth, we conclude that the search in this case was constitutionally invalid, that the evidence thus seized must be suppressed and that, accordingly, the writ should issue.

Searches incident to arrest comprise a well-recognized exception to the warrant requirement of the Fourth Amendment. This exception, of course, does not reduce the level of constitutional protection because it retains the safeguard that probable cause must exist to justify the intrusiveness of the underlying arrest. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). Indeed, in recently expanding the permissible scope of searches incident ' to lawful arrests, the Supreme Court placed great reliance on the existence of probable cause to arrest as a justification for its holding. United States v. Robinson, supra, 414 U.S. at 235, 94 S.Ct. 467; Gustafson v. Florida, supra, 414 U.S. at 265, 94 S.Ct. 488.

Newsome, however, was searched incident to arrest for the violation of a statute which we have found unconstitutional in the main because it substituted mere suspicion for probable cause as the basis for arrest. Thus, we consider his warrantless search constitutionally defective because to sustain its validity would emasculate the essential Fourth Amendment protection which only probable cause provides. Accordingly, we affirm.

      . Patrolman Ungar was the only witness at the loitering trial and the suppression hearing.

      . Presently codified as N.Y.Crim.Proc.L. 710.70(2).

      . The Appellate Term disposed of Newsome’s appeal by issuing a summary order which is silent on the constitutional claims.

      . Although Newsome has not pursued state avenues of collateral attack, his federal claims were presented to the state courts on direct appeal. He has, therefore, satisfied the exhaustion requirement, Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), and the state makes no claim to the contrary.

      . On May 23, 1972, Judge Bruchhausen dismissed the petition because Newsome was not “in custody” as required by 28 U.S.C. 2241. On appeal, we remanded by summary order (April 26, 1973) (72-1875) for a disposition on the merits, in light of the Supreme Court’s holding on the custody question in Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973).

      . Apparently because of a clerical error, Judge Bruchhausen’s memorandum and order incorrectly indicate that Newsome is attacking a conviction for loitering. As noted above, the loitering conviction was vacated by the Appellate Term and the instant petition attacks the drug conviction.

      . After a defendant pleads guilty on advice of counsel, “[t]he focus of federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity.” Tollett v. Henderson, supra, 411 U.S. at 266, 93 S.Ct. at 1608.

      . A companion section, 813-g (presently codified as N.Y.Crim.Proc.L. 710.20(3), 710.-70(2)) permitted similar appeal from the denial of a motion to suppress an allegedly coerced confession.

      . A split panel of the Ninth Circuit has apparently concluded that the exception noted in McMann has not survived Tollett. Mann v. Smith, 488 F.2d 245 (9th Cir. 1973) petition for cert, pending _ U.S. _, 94 S.Ct. 1445, 39 L.Ed.2d 490 (1973). The language to this effect in the Mann majority opinion must be considered dicta, however, since the petitioner had not in fact availed himself of state post-plea appellate procedures. Mann, supra, at 247 n. 1. The court commented that the failure to appeal in state court coupled with an apparent plea bargain was “more consistent with a relinquishment of his Fourth Amendment claims than an attempt to preserve them.” Id. Although we do not agree with the Ninth Circuit’s reading of Tollett’s impact on McMann, our holding is not inconsistent with the determination that a defendant who fails to invoke available state procedures will not automatically benefit on federal habeas from the mere existence of those procedures.

      . See generally Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L.J. 1 (1960); Foote, Vagrancy-Type Law and Its Administration, 104 U.Pa.L.Rev. 603 (1956); Lacey, Vagrancy and Other Crimes of Personal Condition, 66 Harv.L.Rev. 1203 (1953).

      . As construed by the New York courts, the third condition of § 240.35(6) (“upon inquiry . . . defendant refuses to identify himself or fails to give a reasonably credible account of his conduct and purposes”) is not in fact a substantive element of the crime of loitering. Rather, the police inquiry is a “procedural condition” to arrest under the statute. People v. Schanbarger, 24 N.Y.2d 288, 291-292, 300 N.Y.S.2d 100, 101-102, 248 N.E.2d 16, 17 (1969). See People v. Berck, supra, 347 N.Y.S.2d at 36 n. 2, 300 N.E.2d at 413.

      . We note, however, that there is no suggestion that Newsome was the target of a pretextual arrest and search, or that the officers failed to act in good faith.

      . The defects which we find in § 240.35(6), and which were discussed by the New York Court of Appeals in Berch, are neither obscure nor manifestations of recent shifts in the law. The commentary accompanying § 240.35(6) in the New York Penal Law indicates that the subdivision was a new and “controversial” amendment. Subdivision 6 created a catch-all category to supplement other loitering provisions which specify with greater precision the conduct they proscribe. See N.Y.Pen.L. § 240.35. The court in Bereh commented that subdivision 6 was patterned after § 250.12 of Tentative Draft 13 of the Model Penal Code. The American Law Institute abandoned that formulation, however, in its Proposed Official Draft precisely because the vagueness of the tentative draft was subject to the abuse of arrest and searches without probable cause. ALI, Model Penal Code, § 250.6, Proposed Official Draft at 227 (1962).
      Even before the New York Court of Appeals struck down § 240.35(6), the lower state courts bad experienced difficulty in interpreting the statute in a consistent manner to ensure even-handed enforcement. Three lower courts had declared § 240.35(6) unconstitutional (People v. Bambino, 69 Misc.2d 387, 329 N.Y.S.2d 922 (Nassau County Ct.1972); People v. Villanueva, 65 Misc.2d 484, 318 N.Y.S.2d 167 (Long Beach City Ct.1971); People v. Beltrand, 63 Misc.2d 1041, 314 N.Y.S.2d 276 (New York City Crim.Ct.) aff’d on other grounds, 67 Misc.2d 324, 324 N.Y.S.2d 477 (App.Term 1971)); two had upheld the statute in the face of constitutional challenges (People v. Taggart, 66 Misc.2d 344, 320 N.Y.S.2d 671 (Suffolk Dist.Ct.1971); People v. Strauss, 66 Misc.2d 268, 320 N.Y.S.2d 628 (Nassau Dist.Ct. 1971)); and one court has expressed doubts over its constitutionality although it did not reach the ultimate question (People v. Williams, 55 Misc.2d 774, 286 N.Y.S.2d 575 (New York City Crim.Ct.1967)).

      . We disclaim any intention to fashion a per se principle that all searches incident to arrests under statutes later declared unconstitutional are invalid.


source: Caselaw Access Project

author: BREITENSTEIN, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America and E. C. Talley, Special Agent, Internal Revenue Service, Petitioners-Appellants, v. Paul R. HODGSON, Respondent-Appellee.
    No. 73-1525.
    United States Court of Appeals, Tenth Circuit.
    March 7, 1974.

      Charles E. Brookhart, Atty., Tax Div., Dept. of Justice (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks and John P. Burke, Attys., Tax Div., Dept. of Justice; Nathan G. Graham, U. S. Atty., and Robert P. Santee, Asst. U. S. Atty., of counsel, on the brief), for petitioners-appellants.
    James R. Hays, Tulsa, Okl., for respondent-appellee.
    Paul M. Vassar, Gen. Counsel, Chandler, Okl., Oklahoma Bar Ass’n, for ami-cus curiae.
    Before BREITSTEIN, McWILLIAMS and DOYLE, Circuit Judges.
   BREITENSTEIN, Circuit Judge.

The district court denied judicial enforcement of an Internal Revenue Service summons issued pursuant to 26 U.S.C. § 7602. We reverse.

Talley, an IRS special agent in the Intelligence Division, was investigating the federal income tax liability of Leroy Dale Hines for the years 1967-1971. On October 16, 1972, he issued a summons to Paul Hodgson, a lawyer, requiring him to produce records of all charges to or in behalf of Hines during the years 1966-1971 for legal services and records of all moneys received from, or credited to, Hines for such services. The requested records included amounts, payment dates, names of those making payment or causing credit to be made, and the manner in which payments or credits were made. The wording of the summons was broad enough to cover services other than legal but it is agreed that the services which Hodgson performed for Hines were the result of an attorney-client relationship.

Hodgson responded to the summons, declined to produce the records or to testify, and asserted the attorney-client privilege. The United States and the special agent then petitioned for enforcement. See 26 U.S.C. §§ 7402(b) and 7604(a). Hodgson’s answer, supported by his affidavit, admits possession of records reflecting receipts from Hines, and alleges that those records would disclose the general nature of the services rendered. The answer affirmatively says that the special agent was conducting a criminal investigation of Hines for the years in question and asserts the attorney-client privilege as a justification for refusal to respond. After two hearings at which the special agent was the only witness, the district court denied enforcement on the ground that the records and information sought were protected by the claimed privilege.

The question is whether the attorney-client privilege extends to the records and information sought from attorney Hodgson. In the area of federal income tax investigation the claim of privilege is controlled by federal law. United States v. Finley, 5 Cir., 434 F.2d 596, 597, and cases there cited. As said in Colton v. United States, 2 Cir., 306 F.2d 633, 637, cert. denied 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 “the privilege extends essentially only to the substance of matters communicated to an attorney in professional confidence.” Matters relating to receipt of fees from a client are not usually privileged, Ibid, at 638, and United States v. Ponder, 5 Cir., 475 F.2d 37, 39. The reason is that the payment of a fee is not normally a matter of confidence or a communication. Absent confidentiality, the privilege does not apply. Securities and Exchange Commission v. First Security Bank of Utah, 10 Cir., 447 F.2d 166, 167, cert. denied 404 U.S. 1038, 92 S.Ct. 710, 30 L.Ed.2d 729. The records sought are the property of, and in the possession of, the summoned lawyer. This is not a case like Tillotson v. Boughner, 7 Cir., 350 F.2d 663, 665-666, where response to the summons would have revealed the identity of an unknown client. Here the client is named in the summons.

Attorney Hodgson made a blanket claim of the privilege. A general refusal to cooperate is not enough. He must normally raise the privilege as to each record sought and each question asked so that at the enforcement hearing the court can rule with specificity. United States v. Cromer, 9 Cir., 483 F.2d 99, 102; United States v. Roundtree, 5 Cir., 420 F.2d 845, 852, n. 18; and Colton v. United States, supra, 306 F.2d at 639-640. The lawyer’s duty to his client is satisfied when he calls the matter of privilege to the attention of the court and requests a ruling on it. See In re Wasserman, D.C.D.C., 198 F.Supp. 564, 566-567. In the circumstances of the case at bar the records and information sought were not protected by the attorney-client privilege. The Fifth Amendment claim asserted by the attorney is not persuasive. Couch v. United States, 409 U.S. 322, 336, 93 S.Ct. 611, 34 L.Ed.2d 548.

In Donaldson v. United States, 400 U.S. 517, 536, 91 S.Ct. 534, 27 L. Ed.2d 580, the Supreme Court said that an internal revenue summons may be issued under § 7602 “in aid of an investigation if it is issued in good faith and prior to a recommendation for criminal prosecution.” In United States v. Billingsley, 10 Cir., 469 F.2d 1208, 1209, we said that “the recommendation referred to in Donaldson occurs, at the earliest, when the Internal Revenue Service forwards a case to the Department of Justice for criminal prosecution.” The allegation in the response to the petition for enforcement that the summons was issued in connection with a criminal investigation is supported by a supplemental record containing a copy of a January 17, 1974, letter to the attorney from the Regional Counsel for the Southwest Region, IRS. The letter says that the office has under consideration a recommendation that criminal proceedings be instituted against the client, Hines, and others, for tax violations for the years 1964-1966. The validity of a § 7602 summons is tested as of the date of issuance. United States v. Cromer, 9 Cir., 483 F.2d 99, 101.

Donaldson requires that a § 7602 summons be issued in good faith, 400 U.S. at 536, 91 S.Ct. 534. The response to the petition for enforcement presents the good faith question only to the extent that such issue may be inferred from the allegation that the summons was issued in aid of a criminal investigation. At the hearing the only evidence received was from the special agent. His uncontradicted testimony was that he was engaged in a joint investigation of both tax liability and criminal offenses. A dual purpose investigation does not invalidate the summons. Billingsley, supra, 469 F.2d at 1210, and United States v. Theodore, 4 Cir., 479 F.2d 749, 753-754. The trial court took judicial notice that the client Hines had been before the court on four charges of criminal offenses and had a default judgment against him for unpaid gambling taxes. In its conclusions of law, the trial court said that it is “aware of the apparent lack of good faith appearing from the conduct of Petitioners with regard to Hines,” but that it was unnecessary to determine the question because the attorney-client privilege was dispositive.

The respondent attorney argues that if we reverse on the attorney-client privilege, the case must be remanded for a determination of the good faith issue by the trial court. We are not so persuaded. At two hearings in the district court the parties were given full opportunity to present what they wished. The only basis which the record presents for a holding of bad faith is the number of cases which had been brought against the client Hines. The fact that the taxpayer-client had been subject to five previous lawsuits does not immunize him from the summons which is the product of the current investigation. This is not a case like Billingsley in which the trial court did not consider good faith. See 469 F.2d at 1210. Here, the trial court considered the question but disposed of the case on a different ground. There is no intimation that any additional pertinent evidence can be produced at another hearing. A remand for further proceedings at the trial level would stultify the enforcement of the federal tax laws. Questions concerning an IRS summons should be promptly determined so that the summons, if valid, may be promptly enforced. United States v. Davey, 2 Cir., 426 F.2d 842, 845; see also Securities and Exchange Commission v. First Security Bank of Utah, 10 Cir., 447 F.2d 166, 168.

The judgment is reversed with directions to order enforcement of the summons. The mandate shall issue forthwith.


author: WILLIAM E. MILLER, Circuit Judge.

text:
    The TIMKEN COMPANY, Plaintiff-Appellant, v. UNITED STEELWORKERS OF AMERICA et al., Defendants-Appellees.
    No. 73-1487.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 12, 1973.
    Decided Feb. 22, 1974.

      John F. Buchman, Canton, Ohio, for plaintiff-appellant; Robert M. Rybolt, John F. Buchman, Day, Ketterer, Raley, Wright & Rybolt, Canton, Ohio, on brief.
    Rudolph L. Milasich, Jr., Pittsburgh, Pa., for defendants-appellees; Carl B. Frankel, Pittsburgh, Pa., Bredhoff, Cushman, Gottesman & Cohen, Washington, D. C., dayman, Jaffy & Taylor, Columbus, Ohio, on brief; Bernard Kleiman, Chicago, Ill., Joseph M. Coyle, Asst. Gen. Counsel, United Steelworkers of America, Canton, Ohio, of counsel.
    Before EDWARDS, CELEBREZZE and MILLER, Circuit Judges.
   WILLIAM E. MILLER, Circuit Judge.

This is an appeal from the district court’s order upholding the action of an arbitrator in directing the reinstatement of a discharged employee but without back pay. In a dispute over a relatively minor matter, the employee while at work struck a company inspector with his open hand. This was in violation of a company rule which prohibited any employee from striking or fighting with a fellow employee. In case of violation, discharge was prescribed as the penalty. Under the collective bargaining agreement, the employee filed a grievance which eventually reached the arbitrator who found that although the employee violated the rule, discharge was not proper and that the employee should be reinstated. The company insists that the arbitrator exceeded his authority.

Upon consideration of the Agreement in its entirety, we are persuaded that-the arbitrator had the power to construe and determine its meaning with respect to the issue here presented. It is true that Article III reserved to the company “all the customary and usual rights, powers, functions and authority of management,” except as they are “specifically abridged or modified” by the ■ Agreement, which would normally include the right on the part of the company to formulate unilaterally rules of conduct and penalties for violations. It cannot follow from such reserved power that a legitimate dispute could not arise with respect to the method or manner in which the company should exercise its managerial functions or the imposition of penalties in individual cases. Indeed, other contractual provisions indicate that it was the intention of the parties to vest in the arbitrator the authority to determine whether an employee had been discharged “improperly” or without just cause. For example, the first sentence of Article X(B) of the Agreement provided: •

In the event an employee shall be discharged from his employment from and after the date hereof and he believes he has been discharged improperly, such discharge shall constitute a case arising under the method of adjusting grievances herein provided.

It is true that the same article goes on in the second sentence to provide that the company shall reinstate any employee, in the event it should be decided that the employee is found not guilty of the matter charged. It is a question of interpretation, however, whether the second sentence of Article X modifies by negative implication the first sentence to the extent that an arbitrator could order reinstatement only in the event of a not guilty finding. It is now axiomatic that matters of interpretation and application of collective bargaining agreements are for the arbitrator and not for the courts. In fact, the Agreement before us in Article IX, specially confers upon the arbitrator the power “to decide grievances involving the interpreation or application of this Agreement or dis ciplinary action. . . .” (Emphasis supplied). Concededly the same article contains the provision that the arbitrator shall have no power to substitute his discretion for the company’s discretion in cases where the company is given discretion by the Agreement. This clause [Article IX(3)] could reasonably be in-, terpreted by the arbitrator to refer to the reserved power of the company to exercise the customary functions of management, including the establishment of rules of conduct, but not to impinge upon his explicit authority “to decide grievances involving . . . disciplinary action. . . . ” Again the right to construe the contract would be the question presented, a right granted, as we have seen, in specific terms to the arbitrator.

The labor agreement before us is clearly distinguishable from our decision in Local 342, United Automobile, Aerospace, and Agricultural Workers v. T. R. W., 402 F.2d 727, 731 (6th Cir. 1968), cert. den. 395 U.S. 910, 89 S.Ct. 1742, 23 L.Ed.2d 223 (1968), and from the decision of the Fourth Circuit in Textile Workers Union v. American Thread Co., 291 F.2d 894, 899 (4th Cir. 1961).

In T. R. W. the contract in unambiguous terms reserved to the company matters pertaining to disciplinary action, including the discharge of employees. In the American Thread case, it was held that after the arbitrator had unequivocally found that the discharged employee was in fact guilty of conduct constituting “just cause” for discharge under a collective bargaining agreement, he was not free then to measure the appropriateness of the penalty.

In our opinion in the present case the arbitrator could fairly construe the contract to confer upon himself the power to determine whether under the particular facts presented the employee was “properly” discharged, even though he was technically found guilty of committing the act of striking the inspector. Otherwise, the express authority to decide grievances involving “disciplinary action” would be rendered meaningless.

It is well established that the courts look with favor upon the procedure of settling employer-employee disputes by arbitration rather than by resort to the courts. If a collective bargaining agreement is unclear and ambiguous in its terms, its construction should normally be determined by the arbitrator. This policy appears to rest upon two grounds: first, it is considered as an expeditious and relatively inexpensive means of settling grievances and thus as a factor in contributing to labor peace, and second, it obviates the enormous burden which would rest upon the judiciary if it should be required to settle, ease by case, the endless number of grievances and disputes, many of them over trivial matters, which inevitably occur as between employers and employees. See United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Chambers v. Beaunit Corp., 404 F.2d 128 (6th Cir. 1968).

Affirmed.


author: MERRILL, Circuit Judge:

text:
    Kay BOYLE et al., Plaintiffs-Appellants, v. Frank I. MADIGAN et al., Defendants-Appellees.
    No. 73-1345.
    United States Court of Appeals, Ninth Circuit.
    Feb. 6, 1974.

      Edward H. Lyman, Berkeley, Cal. (Argued), Clifford Sweet, Stephen E. Ron-feldt, Oakland, Cal., for plaintiffs-appellants.
    Peter W. Davis (Argued) of Crosby, Heavey, Roach & May, Oakland, Cal., Richard J. Moore, County Counsel, Thomas J. Fennone, Deputy County Counsel, County of Alameda, Oakland, Cal., for defendants-appellees.
    Before MERRILL and KILKENNY, Circuit Judges, and BELLONI, District Judge.

       Honorable Robert C. Belloni, Chief United States District Judge for the District of Oregon, sitting by designation.

   MERRILL, Circuit Judge:

The individual plaintiffs are residents of the Northern District of California who have in the past been incarcerated in Alameda County jail, known as the Santa Rita Rehabilitation Center. None was so incarcerated at the time suit was brought. They bring this action “on behalf of themselves and all other persons who are now, have been, or will be incarcerated in the Santa Rita Rehabilitation Center, and who are now, or have in the past, or will suffer from physical or mental illnesses while so incarcerated.”

The complaint relates to the quality of medical care at the rehabilitation center. It states:

“The suit is not about the occasional failure of the Defendants to provide adequate and proper care to one, five, or even ten prisoners. Rather, it is about the deliberate operation over a period of in excess of five years of a medical system that automatically guarantees that the overwhelming majority of prisoners will be denied essential medical care.”

The “system” is discussed in detail and the manner of its operation upon each individual plaintiff is set forth.

The prayer is for equitable relief. The complaint seeks a declaration that defendants have subjected plaintiffs and the class they represent to cruel and unusual punishment and have denied them their rights to privacy and to petition the courts for redress of grievances. It seeks a decree enjoining defendants from continuing to engage in the practices specified and requiring them to submit for approval a plan assuring compliance.

On motion of the defendants, the District Court entered its order dismissing the action.

Much of the argument on appeal has centered on class-action problems: whether the action can properly be maintained as a class action; whether these plaintiffs can properly represent the class they purport to represent. These questions we need not reach. The District Court did not make determinations in this respect under Rule 23(c)(1), Federal Rules of Civil Procedure. Instead it proceeded directly to dismissal of the action.

In our judgment this is the proper course to follow where the named plaintiffs have failed to state a claim in themselves for the relief they seek. Until they can show themselves aggrieved in the sense that they are entitled to the relief sought, there is no occasion for the court to wrestle with the problems presented in considering whether the action may be maintained on behalf of the class. Until a claim on their own behalf is alleged by the named plaintiffs they have failed to allege an actual case or controversy.

Such is the holding in O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (Jan. 15, 1974), where the Court stated:

“[I]f none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class.”

414 U.S. at 494, 94 S.Ct. at 675.

Here, since no named plaintiff was, on commencement of the action, incarcerated in Santa Rita Rehabilitation Center, none would have received any direct benefit from the injunction sought, the implementing plan, or the declaratory relief. Nor would the prospect that they may in the future return to the center as inmates suffice. As stated in O’Shea v. Littleton, supra:

“Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects. * * *
Of course, past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury. But here the prospect of future injury rests on the likelihood that respondents will again be arrested for and charged with violations of the criminal law * * *
As in Golden v. Zwickler [394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969)], we doubt that there is ‘sufficient immediacy and reality’ to respondents’ allegations of future injury to warrant invocation of the jurisdiction of the District Court. There, ‘it was wholly conjectural that another occasion might arise when Zwickler might be prosecuted for distributing the handbills referred to in the complaint.’ 394 U.S., at 109 [89 S.Ct., at 960].”

414 U.S. at 495, 94 S.Ct. at 676.

Judgment affirmed.

      . One plaintiff originally sought money damages. When the complaint was dismissed without leave to amend as to all other plaintiffs, this plaintiff was granted leave to amend. When he failed to do so within the time allowed, suit was dismissed as to all plaintiffs.


author: PER CURIAM.

text:
    John CHANIK and Betty Chanik, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
    Nos. 73-1385-86.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 10, 1973.
    Decided Feb. 4, 1974.

      Bruce H. Seyburn, Southfield, Mich., for petitioners; Donald G. Schiff, David J. Lieberman, Southfield, Mich., on brief.
    Robert S. Watkins, Tax Div., Dept. of Justice, Washington, D. C., for respondent; Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Jonathan S. Cohen, Attys., Tax Div., Dept. of Justice, Washington, D. C., on brief; Lee H. Henkel, Jr., Chief Counsel, I. R. S., Washington, D. C., of counsel.
    Before PHILLIPS, Chief Judge, and EDWARDS and LIVELY, Circuit Judges.
   PER CURIAM.

Mr. and Mrs. John Chanik appeal from an adverse decision of the Tax Court, T.C.Memo 1972-174.

The consolidated cases involve asserted deficiencies and penalties with respect to federal income taxes for the taxable years 1958, 1959, 1960, 1961, 1964 and 1965, in the aggregate amount of $151,435.70.

The taxpayers filed joint returns for all the years in question. The appeal involves income found to have been received by the taxpayers with respect to interests in certain oil leases. Reference is made to the decision of the Tax Court, announced by Judge Sterrett, for a recitation of the facts.

The taxpayers contend that the Tax Court erred in denying their motion to quash the deficiency because of illegally obtained evidence. In 1963 Mr. Chanik was investigated by the Michigan Securities and Exchange Commission, which subpoenaed the books and records relating to the oil leases here in question. When a Federal Grand Jury was considering mail fraud charges against Mr. Chanik, the United States Attorney obtained from the State Commission an undisclosed amount of books and records concerning the leases. Almost all the documentary evidence relied upon by the Commissioner in the instant case was obtained from the United States Attorney, and was among the lease records acquired by the United States Attorney from the Michigan Commission. For the reasons stated in the opinion of Judge Sterrett, we find that the Tax Court did not err in refusing to quash the deficiency. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 26 L.Ed.2d 208 (1973); Alderman v. United States, 394 U.S. 165, 173-174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1968); United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944).

Also for the reasons stated in the opinion of Judge Sterrett, we hold: (1) The Tax Court correctly sustained the determination of the Commissioner that the taxpayers realized taxable income in each of the years 1958 through 1960 as a result of the sale of fractional interests in the oil leases in question. Pacific Jobbers, 55 T.C. 866, 874-875 (1971), aff’d, 457 F.2d 1165 (5th Cir. 1972); (2) The Tax Court correctly upheld the Commissioner’s disallowance of claimed business expense deductions allegedly incurred by the taxpayers while engaged in “oil exploration” in 1964 and 1965; and (3) The Tax Court correctly determined that Mrs. Chanik does not qualify for relief as an innocent spouse under § 6013(e) of the Internal Revenue Code.

On appeal the taxpayers argue that the oil lease transactions were joint ventures and that the money received was property exchanged for an interest in a partnership, seeking to come within the non-recognition provisions of § 721. This issue was not raised in the Tax Court and no evidence was presented by petitioners to show that the transactions were a partnership within the meaning of the § 721. This contention of the taxpayers is not supported by the record.

Affirmed.


author: WEBSTER, Circuit Judge.

text:
    George SAAL, Appellant, v. Clarence MIELKE, Appellee.
    No. 73-1620.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 16, 1974.
    Decided March 8, 1974.
    Phillip D. Nelson, Bemidji, Minn., for appellant.

      Gerald S. Rufer, Fergus Falls, Minn., for appellee.
    Before LAY, STEPHENSON and WEBSTER, Circuit Judges.
   WEBSTER, Circuit Judge.

In this diversity action George Saal sought to recover damages for personal injuries suffered when he fell from a boat dock owned by Clarence Mielke, defendant below. Mielke moved for summary judgment, relying primarily upon pre-trial discovery to show the existence of an oral lease between Mielke and one Ted Eckert which made Eckert solely responsible for the dock’s maintenance and operation, and hence, under Minnesota law, exonerated Mielke from liability for Saal’s injuries. The District Court granted summary judgment in favor of Mielke. Because we find that the existence of the lease is a fact both genuinely disputed and material, we reverse.

The facts with respect to the accident itself are undisputed. Saal had gone to Mielke’s property on Head Lake in northern Minnesota on May 17, 1971 to rent a fishing boat. As he was walking on the boat dock one of the boards broke and he fell off the dock. Mielke based his defense upon the lease. According to the deposition testimony of Mielke and Eckert, and the answers to certain interrogatories propounded to Mielke, Eckert had leased the boat dock premises from Mielke each year since 1968 for $150 per year. Under the terms of the oral lease agreement, Eckert was responsible for the care, maintenance and operation of the premises and was entitled to retain the rentals from the boats and cabin-trailers. However, two of the six cabin-trailers were rented out for the entire season by Mielke, who retained the rentals. Only the oral testimony supports the existence of the lease. All of Eckert’s annual payments were made in cash, according to the testimony. Eckert kept no records of either expenses or income, and he did not earn sufficient income during the term of the lease to require him to file income tax returns.

That the property subject to the alleged lease, including the 29 acres of farmland and lake shore, the six trailer-cabins and the fifteen rowboats, is owned by Mielke is undisputed. The rowboats are licensed by the State of Minnesota in Mielke’s name. Moreover, during the period of the lease Mielke paid for the capital improvements on the property including the addition of five trailers, the replacement of boats and the materials used in the construction of a cement block building containing showers and toilets, as well as the cost of the cesspools. All this was done without any increase in the $150 yearly rent. Mielke’s income tax returns reveal that the operation of the subject property has always been reported on a form Schedule C — Profit or Loss From Business or Profession — rather than the form for Profit or Loss From Rental Property. The tax returns also reveal an annual net operating loss on the property ranging from a low of $832.25 in 1969 to a high of $1661.11 in 1971. Real estate taxes alone have averaged nearly twice Eckert’s annual payment.

The District Judge did not file a memorandum with his order granting summary judgment (as indeed he is not required by the Rules to do), but it may be fairly -inferred that he found the existence of the lease to be a bar to recovery. The legal conclusion which resulted from this finding is neither conceded nor contested on this appeal; the only question here is whether the record discloses the existence of the leasehold beyond genuine dispute. In Ozark Milling Co., Inc. v. Allied Mills, Inc., 480 F.2d 1014, 1015 (8th Cir. 1973), this court restated the general rules applicable to summary judgment motions:

Rule 56 of the Federal Rules of Civil Procedure provides for the entry of summary judgment where the record discloses that there exists no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law. Summary judgment is an extreme remedy, one which is not to be entered unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances.

Accord: Rotermund v. United States Steel Corp., 474 F.2d 1139 (8th Cir. 1973); Luick v. Graybar Electric Co., Inc., 473 F.2d 1360 (8th Cir. 1973); Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 939, 35 L.Ed.2d 257 (1973); City National Bank v. Vanderboom, 422 F.2d 221 (8th Cir.), cert. denied, 399 U.S. 905, 90 S.Ct. 2196, 26 L.Ed.2d 560 (1970); Traylor v. Black, Sivalls & Bryson, Inc., 189 F.2d 213 (8th Cir. 1951).

Under this standard, the evidence in this record cannot be said to establish the existence of the leasehold “with such clarity as to leave no room for controversy.” It is true that no direct evidence exists to contradict the sworn deposition testimony of Mielke and Eckert, but no other evidence, direct or circumstantial, exists to corroborate that testimony. The body of circumstantial evidence which runs counter to the existence of a lease is clearly sufficient to bring into issue the credibility of these two interested parties. “[Wjhere the existence of an alleged oral contract is at issue and the evidence is disputed, the question should be resolved by the jury.” Ozark Milling Co., Inc. v. Allied Mills, Inc., supra, 480 F.2d at 1015 n. 1. The existence and terms of an oral lease agreement depend in this case upon the testimony of the parties to the alleged agreement. The appellant may not be denied his chance to test the credibility of that testimony before the proper triers of the fact. A genuine issue of a material fact is present in this case, precluding summary judgment.

Reversed and remanded.

      . Some time after Saal’s accident, Eckert began keeping records, including the names of persons renting boats and cabins. Due to the absence of records, only the seasonal renters who dealt directly with Mielke can be identified.


author: PER CURIAM:

text:
    John M. LEDFORD et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
    No. 72-2352.
    United States Court of Appeals, Ninth Circuit.
    Feb. 20, 1974.

      Timothy R. Nibler, of Lerrigo, Thuesen, Smith, Walters & Nibler, Fresno, Cal., for plaintiffs-appellants.
    Scott P. Crampton, Asst. Atty. Gen., Washington, D. C., Richard V. Boulger, Asst. Atty. Gen., Fresno, Cal., for defendant-appellee.
    Before MERRILL, WRIGHT and CHOY, Circuit Judges.
   PER CURIAM:

We agree with the District Court that the purchasers here assumed the loan secured by trust deed during the year 1966, and that under § 453(b) (2) (A)(ii) of the Internal Revenue Code of 1954 and Treasury Regulation § 1.453-4 (c) reporting of the sale on the installment method was not available to appellants as sellers.

The record indicates that the escrow agreement provided that the purchasers were to assume the mortgage as a condition precedent to the closing of escrow in 1966. The fact that one payment of principal and interest remained to be made by the seller the following year (it actually was prepaid prior to close of escrow) does not mean that the purchasers’ assumption of the balance was deferred until after that payment. The question is not when payments were due, but when the purchasers legally relieved the sellers of final responsibility to pay off the balance and accepted that responsibility in their stead. Upon termination of the escrow and passing of title in 1966 the respective obligations of the sellers and the purchasers were fixed in accordance with the escrow agreement.

Unlike the situation in Ludlow v. Commissioner of Internal Revenue, 36 T.C. 102 (1961), upon which appellants rely, the taxpayers were paid by the purchasers exactly as intended. Their receipt of an amount in excess of 30 per cent, of the purchase price was not the result of mathematical error.

We agree with the Government that appellants have not preserved their contention respecting an increase in basis for purpose of determining gain on the sale. This issue was belatedly injected into the ease as an alternative to appellants’ contentions respecting assumption of the loan obligation and entitlement to the installment method of reporting. Motions of the respective parties for summary judgment were not directed to the basis contention and it was not considered by the District Court in granting judgment. No motion for new trial presented the issue to the District Court prior to appeal. We decline to consider it here.

Judgment affirmed.


text:
    Bill Harvey DUKES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-2477.
    United States Court of Appeals, Ninth Circuit.
    Feb. 6, 1974.

      Bruce Krell, San Francisco, Cal., for petitioner-appellant.
    William D. Keller, U. S. Atty., Vincent M. Vori Der Ahe, Asst. U. S. Atty., Los Angeles, Cal., for respondent-appellee.
    Before MERRILL, WRIGHT and CHOY, Circuit Judges.
   OPINION

PER CURIAM:

Dukes was convicted in 1965 of armed bank robbery and sentenced to custody for 25 years. His untimely appeal was denied in November 1966, and certiorari was denied by the Supreme Court. Dukes v. United States, 386 U.S. 946, 87 S.Ct. 982, 17 L.Ed.2d 876 (1967). Later that year, appellant attacked his sentence under 28 U.S.C. § 2255. His motion was denied by the district judge who had sentenced him earlier, and we affirmed on appeal. Dukes v. United States, 407 F.2d 863 (9th Cir. 1969).

Another § 2255 motion, the subject of this appeal, was filed in 1973 alleging that the sentence was based at least in part on an alleged prior criminal record which was erroneously considered by the sentencing judge. This motion was denied by the district court without an evidentiary hearing. Denial of a § 2255 motion without an evidentiary hearing is proper only if the motion, files and records of the case conclusively show that the prisoner is entitled to no relief. 28 U.S.C. § 2255.

In his 1967 motion, Dukes argued that the erroneous criminal record was considered in determining his sentence. He did not press the point on appeal, and we did not consider it. Dukes v. United States, 407 F.2d 863 (9th Cir. 1969). However, in denying the motion, the district judge rejected the contention. After reviewing the facts of the bank robbery case, tried before him, the judge commented upon Dukes’ demeanor in the courtroom and his attitude toward the offense and concluded :

The sentence in this case of 25 years was imposed because the court considered this man a menace to society. Little thought was given to the FBI report because it was read to the court in such a way that it was, at least in part, unintelligible.

We cannot distinguish Dukes’ contention from that made in United States v. Eidum, 474 F.2d 581 (9th Cir. 1973), where we said in affirming a denial of § 2255 relief:

This court will not refute the judge’s own estimation of the deleterious impact of the prior convictions on his determination of sentence. The record shows on its face that the judge did not consider those convictions in imposing sentence.

Similarly, the district court that sentenced Dukes disclaimed reliance on the prior criminal record. The record shows on its face that the petitioner was not entitled to relief, and an evidentiary hearing was not required.

The judgment of the district court is affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellant, Aaron Lee Smith et al., Plaintiff-Intervenor-Appellants, v. BOARD OF EDUCATION, INDEPENDENT SCHOOL DISTRICT NO. 1, TULSA COUNTY, OKLAHOMA, et al., Defendants-Appellees.
    Nos. 71-1767, 71-1768.
    United States Court of Appeals, Tenth Circuit.
    March 29, 1974.
    Brian K. Landsberg, Dept. of Justice, Washington, D.C. (Nathan G. Graham, U. S. Atty., J. Stanley Pottinger, Asst. Atty. Gen., with him on the brief), for plaintiff-appellant.
    Sylvia Drew, New York City, (Jack Greenberg, James M. Nabrit, III, Norman J. Chaehkin, New York City, James O. Goodwin, Tulsa, Okl., and John W. Walker, Little Rock, Ark., with him on the brief), for plaintiff-intervenor-appellants.
    David L. Fist, Tulsa, Okl., (C. H. Rosenstein, Tulsa, Okl., with him on the brief), for defendants-appellees.
    Before LEWIS, Chief Judge and SETH and McWILLIAMS, Circuit Judges.
   PER CURIAM.

This case reaches us after remand by the United States Supreme Court, 413 U.S. 916, 93 S.Ct. 3048, 37 L.Ed.2d 1038. The High Court by its order vacated this court’s earlier judgment, 459 F.2d 720, and directed us to give the case further consideration in light of Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548. In accord with the mandate the case was again briefed and argued.

After due consideration we are convinced that the factual premise upon which we based our original decision has been so materially changed both by lapse of time and the specific and voluntary actions taken by the School Board and the students themselves that our further consideration under the present record would serve no useful purpose.

Accordingly, the judgment of the District Court is reversed with directions to vacate its judgment and to initiate such further proceedings as may be necessary to establish present conditions and to render judgment in view of such conditions and the compulsion of Keyes.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Joseph C. ASHER, d/b/a The Meat Cleaver, Respondent.
    No. 73-1724.
    United States Court of Appeals, Ninth Circuit.
    March 21, 1974.
    Corinna Metcalf, Atty., N.L.R.B. (argued), Elliott Moore, Acting Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Wilford W. Johansen, N.L.R.B., Los Angeles, Cal., for petitioner.
    Max Sisenwein (argued), Sisenwein & Stanton, Charles M. Arak, Los Angeles, Cal., for respondent.
    Before ELY, HUFSTEDLER and TRASK, Circuit Judges.
   OPINION

PER CURIAM:

The petitioning Board’s Decision and Order is reported at 200 NLRB No. 130. We are not persuaded that the Board’s critical factual determinations were not supported by substantial evidence; therefore, its Order will be

Enforced.


author: PER CURIAM: BENNETT, Judge

text:
    Florence S. WILSON v. The UNITED STATES.
    No. 866-71.
    United States Court of Claims.
    Feb. 20, 1974.
    Jerry D. Anker, Washington, D. C., attorney of record, for plaintiff.
    LeRoy Southmayd, Jr., Washington, D. C., with whom was Acting Asst. Atty. Gen. Irving Jaffe, for defendant.
    Before DURFEE, Senior Judge, and KASHIWA and BENNETT, Judges.
    ON PLAINTIFF’S MOTION AND DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT
   PER CURIAM:

This case comes before the court on plaintiff’s motion for summary judgment, filed May 31, 1973, and defendant’s cross motion for summary judgment, filed September 17, 1973. Upon consideration thereof, together with the responses, stipulations and affidavits thereto, and after oral argument, it appears that plaintiff alleges and claims that the Government’s failure to retain her as a kindergarten teacher was, under the circumstances of the case, arbitrary and capricious. The case is before the court on the issue of liability alone. The court concludes that basic factual disputes exist between the parties, most particularly with respect to whether or not the plaintiff was misled to believe she was a fully qualified employee. A further question, which cannot be resolved on the present state of the record, concerns whether there was an unreasonable delay, caused by the Government, in not informing the plaintiff that she lacked the requisite educational credits for the teaching position.

We note that this court has in the past required the parties to submit factual issues to the fact finder, despite the fact that the ease appeared on cross motions for summary judgment. In Jackson v. United States, 428 F.2d 844, 848, 192 Ct.Cl. 765, 772 (1970), we said:

In view of the foregoing, and fully respecting the wish of the parties to have the case decided on the administrative record, we are unable to hold that there is no genuine issue of material fact, in view of the record, with respect to whether or not plaintiff was discharged as a reprisal for exercising his First Amendment right to petition for redress of grievances. This is the key fact issue in the case and before a decision is possible it must be resolved by trial. * * *

See, also, the order of this court in Western Contracting Corp. v. United States, 198 Ct.Cl. 980 (1972), and Rule 101(d) of the Rules of the United States Court of Claims.

Upon the foregoing, the plaintiff’s motion for summary judgment is denied, the defendant’s cross motion for summary judgment is denied, and the case is hereby remanded to the trial division of this court for determination of all the factual and legal issues pertinent to the claim.

BENNETT, Judge

(dissenting):

I believe it to be a mistake to remand this case to the Trial Division for the taking of further evidence. It can be decided on the present record. The parties are agreed on this and at oral argument said that they did not want a trial. They said that a trial if held would have to be in Germany, that the expense would be prohibitive, and the delay unreasonable. They also said that at this late date it would probably be impossible to round up the necessary witnesses for testimony on an incident that took place in 1969. The facts are all stipulated. The issue is one of law. Plaintiff alleges that actions taken by the Government in terminating plaintiff’s “excepted” appointment, effective June 11, 1969, when her contract expired as a teacher, and in refusing to employ plaintiff for the 1969-70 school year, because she did not have the required 18 hours of credit in professional education, were unlawful, arbitrary and capricious. Plaintiff had been in the teaching position, in Germany, when the school was operated as a nonappropriated fund activity and the 18 hours of credit were not required. Teachers were hired by a private association and were paid by donations and tuition. There were no set qualifications for the positions. When in the middle of the school year the change was made and the school was taken over by the Department of Defense and put under the Army she was continued in her position, by waiver, until the end of the school year but was not rehired because she lacked the credits required for all teachers in the Overseas Dependents Schools operated by DOD. She had no teaching certificate and no courses in education. Plaintiff also contends that had she been given timely notice of the 18-hour requirement that she could have completed it by correspondence and in summer school so that she would have qualified sooner for reappointment. She also says that, in any event, refusal to rehire her despite lack of the required credits was simply wrong, since she had been performing satisfactorily. This is the main foundation for her claim. Defendant says she always knew that she didn’t have courses in education on her transcript, that she was not misled, that the regulations were fair, nondiscriminatory, and valid, that plaintiff was given every consideration that the law allowed, and that no court has jurisdiction to interfere with the discretionary authority of the Executive to appoint. The issues are thus clearly drawn.

Plaintiff contested this matter unsuccessfully through formal Army grievance channels. She then earned the credits and after a year away from her position was rehired. She seeks back pay for the lost year for which she had no contract.

All of the facts are before the court either by stipulation or by affidavit. The court desires a trial because there is some conflict in the affidavits (which is routine on motions for summary judgment) which creates some uncertainty about when plaintiff received notice of the 18-hour requirement and that she did not qualify for a new contract.

Plaintiff’s reply brief states that “it is unnecessary for the court to attempt to resolve these conflicts in the affidavits.” Plaintiff is correct in that the task before the court is to decide a legal issue. The issue may be stated as to whether a statute or regulation was violated by what the Army did and whether in exercising its discretionary functions the Army acted in an illegal manner because it was arbitrary and unreasonable under the agreed facts — or, alternatively, whether plaintiff had any legal right to a new contract with a different party when the old contract expired.

The parties are entitled to a prompt decision but the order of remand denies them that and would put them to added expense and delay to gather evidence they say they cannot produce. They say they are not going to try this case in Germany since they have no further evidence to offer there or elsewhere. The court, despite its references to whether plaintiff was misled or whether defendant delayed notice, thus seems to leave the parties with the following alternatives: (a) to abandon the claim, (b) to compromise or settle the claim, (c) to take depositions of evidence already stipulated or now in affidavits, or (d) to ask that the trial judge close proof and report the case on the existing record. I do not for one moment question the right of the court to remand a case to the Trial Division to develop facts which are essential, nor even its prerogative not to bite the bullet if it can be otherwise avoided, although I would hope for better reasons than we are given here. I do suggest it is unwise, as here, to give credence to the axiom that “justice delayed is justice denied.” I do not pass on the ultimate issues of liability at this stage of the proceedings.