author: JAMES HUNTER, III, Circuit Judge:

text:
    Robert Wayne GRANT, #38013. Appellant, v. Marvin HOGAN, Warden, U.S. N.E. P., Appellee.
    No. 74-1266.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) Sept. 18, 1974.
    Decided Nov. 20, 1974.

      Robert Wayne Grant, pro se.
    S. John Cottone, U. S. Atty., Harry A. Nagle, Michael D. McDowell, Lewisburg, Pa., for appellee.
    Before VAN DUSEN, HUNTER and WEIS, Circuit Judges.
   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This case presents the question of whether a federal prisoner, against whom a state other than the one of confinement has lodged a detainer based on a pending criminal charge, must first pursue his remedies under the Interstate Agreement on Detainers, 18 U.S.C. App. Article III, before seeking relief from that detainer in federal court.

Since January 5, 1972, Petitioner Grant has been a prisoner at the Lewis-burg federal penitentiary in Pennsylvania, and is currently serving a 15-year term on a federal conviction, with a mandatory release date of August 16, 1981. On February 2, 1972, the Connecticut Attorney General lodged a detainer against Petitioner on the basis of a charge pending in that state for “robbery with violence.” Grant had been prosecuted on that charge in 1970, but a mistrial resulted, and the State of Connecticut has taken no steps since then to initiate a second trial.

Although the prison officials at Lew-isburg promptly notified Grant of the detainer and of his rights under the Interstate Agreement, he did not seek to invoke the provisions of the Agreement. Rather, over a year later, on February 21, 1973, he filed a motion with the Connecticut Superior Court in Hartford to dismiss the criminal charge for lack of prosecution. This motion was summarily denied on March 2, 1973, and there is no indication anywhere in the record that Grant appealed from that dismissal or took any further action in Connecticut with respect to the outstanding indictment. On November 29, 1973, allegedly after making repeated requests to George C. Nye of the records office at Lewisburg to remove the detainer, he sought relief in the United States District Court for the Middle District of Pennsylvania by means of a pro se petition under 28 U.S.C. § 2255. The district court dismissed the petition on the ground that Grant had failed to pursue his remedies under the Interstate Agreement and had failed to request that the Connecticut charge be acted upon through the mechanism provided by the Agreement. It is from this ruling that the Petitioner appeals. We affirm.

The law with respect to attacks on de-tainers presents a number of complex procedural hurdles for lawyers as well as for pro se litigants, and thus we consider it necessary to discuss in some detail the variety of possible routes a prisoner may pursue and their applicability to this case.

We will first note what is not involved in this case. In his petition filed with the district court and in his brief on appeal, Grant makes clear that he does not seek to bar prosecution on the underlying indictment, even though he claims that he has been denied his constitutional right to a speedy trial. Rather, he seeks relief from the detainer through an order requiring the Respondent, the warden of the Lewisburg penitentiary, to “hold for naught” the Connecticut de-tainer and to give it no effect. Thus, this case is not directly controlled by those decisions which have held that a prisoner may sue in habeas corpus either to demand an immediate trial or to bar prosecution on the underlying charge on speedy trial grounds.

Furthermore, the Petitioner does not challenge as unconstitutional the effect which the Lewisburg prison officials may be giving the detainer. The lodging of detainers frequently results in the placing of additional restrictions on prisoners and the loss of opportunities to participate in rehabilitation programs and receive parole, and the courts have shown an increasing willingness to grant habeas corpus or other types of relief against such restrictions. While the Petitioner here states that he is attacking the detainer in order to be relieved of its adverse effects, the thrust of his challenge is not directed against those effects, but rather against the detainer itself, which he claims is invalid because of the failure of Connecticut officials to afford him a speedy trial on the underlying indictment. His challenge to the restrictions is therefore only incidental to his basic challenge to the detainer.

It is clear that habeas corpus is a proper vehicle for challenging a detainer on the ground that prosecution on the underlying charges would be unconstitutional. In United States ex rel. Jennings v. State of Pennsylvania, 429 F.2d 522, 523 (3d Cir. 1970), this Circuit held that a state prisoner may sue under 28 U.S.C. § 2254 for an order directing his warden not to hold him subject to the out-of-state detainer. We also noted there that habeas corpus relief would be available only if the prisoner had exhausted the remedies available to him in the indicting state when seeking his right to a speedy trial on the underlying charges.

Unlike Jennings, however, this suit can be brought only under 28 U.S.C. § 2241, which does not by its terms require the exhaustion of state remedies or of any other types of remedies. Nevertheless, despite the absence of an explicit exhaustion requirement in section 2241, we have held that federal prisoners suing under section 2241 must first exhaust available administrative remedies. In Soyka v. Alldredge, 481 F.2d 303 (3d Cir. 1973), we held that a prisoner suing under section 2241 to seek credit toward a sentence for time allegedly spent in prison prior to sentencing must first exhaust administrative remedies by seeking relief from the Attorney General or the Director of the Bureau of Prisons after his request had initially been denied by his warden. We required such exhaustion because Congress had enacted a statute, 18 U.S.C. § 3658, which provided that the Attorney General shall give federal prisoners whatever • credit they are entitled to.

Whether the remedies afforded by the Interstate Agreement be characterized as administrative or judicial, we believe that this is even a stronger case for requiring exhaustion by federal prisoners than Soyka, since the remedies provided by the Interstate Agreement are more explicit. In making the United States a party to the Agreement, Congress thereby established a simple procedure which permits the speedy disposition of any untried indictment, information or complaint and the dismissal of any untried charges, along with the removal of any detainer based thereon, where the indicting state has not responded within the required period of time to a prisoner’s request. It is evident, therefore, that the Agreement provides an effective remedy for the disposition of the Petitioner’s claim and that requiring resort to the Agreement may make unnecessary any intervention by the federal courts. See McKart v. United States, 395 U.S. 185, 195, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). We therefore believe that it is in the interests of sound judicial administration, and consistent with established principles, to require that prisoners pursue those remedies before seeking relief in the federal courts under section 2241.

While we affirm the district court’s action requiring resort to the Interstate Agreement in this case, we recognize that there may be unusual circumstances, not present here, in which failure to pursue remedies under the Agreement would not necessarily preclude habeas corpus relief. If, for example, the Petitioner had demanded a speedy trial of the Connecticut courts without invoking the provisions of the Agreement, had moved to dismiss the charges for lack of speedy prosecution, and had sought and obtained appellate review of the denial of his motion to dismiss, habeas corpus relief might be available despite his failure' to pursue his remedies under the Interstate Agreement. In such a situation, where the highest state court in Connecticut had already decided that the Petitioner’s right to a speedy trial had not been violated, it would appear useless to require resort to the Agreement. In this case, however, the only action the Petitioner took in Connecticut was to file a motion to dismiss the charges for lack of prosecution. He neither requested a speedy trial nor sought relief from a higher state court, and it is clear that a prisoner must do at least both before seeking federal habeas corpus relief.

The final question remaining is whether the Petitioner could have circumvented the exhaustion requirement by seeking some form of relief from the detainer other than habeas corpus relief. Since this is a pro se case, we are obligated to consider all the possible forms of relief suggested by the Petitioner’s challenge. However, on examining the other possibilities, we conclude that no other form of relief is available to the Petitioner.

Since the warden at Lewis-burg is a federal official, the Petitioner cannot obtain jurisdiction under 28 U.S. C. § 1343(3) for a Civil Rights action pursuant to 42 U.S.C. § 1983. While he might be able to sue under 28 U.S.C. § 1331, which provides for a general federal question jurisdiction, he would have to satisfy the $10,000 jurisdictional amount requirement, a difficult though not insurmountable problem where injunctive relief is sought with respect to alleged deprivations of constitutional rights. The Petitioner here, of course, has made no attempt to satisfy the jurisdictional amount requirement.

Neither mandamus under 28 U.S.C. § 1361 nor the Administrative Procedure Act, 5 U.S.C. §§ 701-706, are available, since they provide relief only where a clear duty is owed the plaintiff or there is an abuse of discretion, and it is hard to see how the federal warden at Lewisburg owes a duty not to recognize a detainer which may be invalid through the inaction of Connecticut officials or has abused his discretion by recognizing it. It is also well recognized that mandamus will lie only when no alternative and adequate remedy is available. See Burnett v. Tolson, 474 F.2d 877, 882 (4th Cir. 1973); Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969). The availability of remedies under the Interstate Agreement thus clearly precludes mandamus. In fact, we have previously held that federal prisoners suing in mandamus must exhaust available administrative remedies. Waddell v. Alldredge, 480 F.2d 1078, 1079 (3d Cir. 1973). Finally, with respect to the Administrative Procedure Act, this Circuit has consistently taken the position that the A.P.A. does not provide an independent basis for jurisdiction. See Zimmerman v. United States, 422 F.2d 326, 330 (3d Cir. 1970); Local 542, IUOE v. NLRB, 328 F.2d 850, 854 (3d Cir. 1964).

The judgment of the district court will be affirmed.

      . Act of Dec. 8, 1970, Pub.L.No. 91-538, §§ 1-8, 84 Stat. 1397. In enacting this law, Congress thereby made the United States a party to the Agreement, which has also been entered into by 37 states. Both Pennsylvania, 19 P.S. §§ 1431-1438, and Connecticut, C.G.S.A. 54-186 to 54-192, are parties.
      The purpose of the Agreement is to permit speedy disposition of any untried indictment, information or complaint on the basis of which a detainer has been lodged against a prisoner in another party state. Article III (a) of the Agreement provides that if a prisoner against whom a detainer has been lodged causes to be delivered to the prosecuting officer and the appropriate court a written request for final disposition of the outstanding charges against him, he must be brought to trial within 180 days, unless any continuances have been granted for “good cause.” Article 111(b) provides that such a written request shall be given by the prisoner to the warden who has custody over him, who shall then promptly forward the request to the appropriate prosecutor and court. If the prisoner is not brought to trial within the 180 day period, assuming no continuance lias been granted, Article V (c) of the Agreement provides that “the appropriate court of the jurisdiction where the indictment, information, or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.” The Agreement also permits a state to move on its own to bring the prisoner to trial, and provides that if it fails to try him within 120 days after it obtains custody of the prisoner, all charges must be dismissed. Article IV(a), (c) and V(c).

      . See generally Wexler and Iiershey, Criminal Detainers, in a Nutshell, 7 Crim.L.Bull. 753 (1971) ; Note, Convicts — The Right to a Speedy Trial and the New Detainer Statutes, 18 Rutgers L.Rev. 828 (1964).

      . Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973).

      . Kane v. State of Virginia, 419 F.2d 1369 (4th Cir. 1970). Both Braden and Kane held that habeas corpus relief was available under 28 U.S.C. § 2254 where a prisoner has demanded a speedy trial and has exhausted the remedies of the indicting state. Since neither Braden nor Kane involved actions where the Interstate Agreement on Detain-ers was operative, those decisions shed no light on the question of whether a prisoner suing to bar a pending prosecution must first pursue his remedies under the Agreement.

      . See Nelson v. George, 399 U.S. 224, 90 S.Ct. 1963, 26 L.Ed.2d 578 (1970); United States ex rel. Jennings v. Pennsylvania, 429 F.2d 522, 523 n. 4 (3d Cir. 1970); Cooper v. Lockhart, 489 F.2d 308, 315 (8th Cir. 1973); Holt v. Moore, 357 F.Supp. 1102 (W.D.N.C.1973); Wexler and Hershey, Criminal Detainers in a Nutshell, 7 Crim.L.Bull. 753, 768 & n. 85 (1971). The Supreme Court in Nelson held that a state prisoner seeking habeas corpus relief from the adverse effect given the detainer by the prison officials must first exhaust his remedies in the confining state. As Petitioner Grant is in federal prison, that principle would seem to require him to exhaust his administrative remedies with the Lewisburg prison officials before suing in habeas corpus for this type of relief. Cf. Soyka v. Alldredge, 481 F.2d 303, 306 (3d Cir. 1973).

      . Since the Petitioner is not primarily challenging specific adverse effects flowing from the detainer, we need not consider whether this repeated ineffectual demands on Mr. Nye to remove the detainer, if in fact made, would constitute a sufficient exhaustion of remedies. Similarly, we do not pass on the question of whether, if the Petitioner had primarily been seeking relief from the adverse effects given the detainer by the Lew-isburg prison officials, he would be required to pursue his remedies under the Interstate Agreement. Since the Agreement provides for the speedy disposition of any pending charges and for the possible removal of the detainer on which those charges are based, it may not be relevant to a suit which solely challenges the practices and policies of the prison officials without challenging the validity of the detainer itself. It is clear, however, that some form of exhaustion would be required. See note 5 supra. Finally, we reserve judgment on the question of what types of effects given a detainer are subject to constitutional attack.

      . See also Trigg v. Moseley, 433 F.2d 364, 366 (10th Cir. 1970). Cf. Weiss v. Blackwell, 310 F.Supp. 360 (N.D.Ga.1969); Lawrence v. Blackwell, 298 F.Supp. 708 (N.D.Ga.1969); Caruth v. Mackell, 7 Crim.L.Rep. 2414 (E.D.N.Y. July 15, 1970).

      . While the relief sought by the prisoner in Jennings, supra, was to remove the detainer rather than to bar prosecution for the charges on which the detainer is based, the exhaustion requirement for the two types of actions is essentially the same, since both types seek relief from the failure of the foreign state to provide the prisoner his constitutional right to a speedy trial. In this respect we find persuasive the reasoning of the Tenth Circuit which rejected the argument that state remedies need not be exhausted where only the “limited relief” of removing the detainer is sought:
      Belief from the detainer in federal habeas [corpus] proceedings is necessarily predicated on a determination that the petitioner’s federal constitutional right to a speedy trial on the underlying charge has been irremediably violated. This decision is primarily for the state court where the charge is pending, not the federal court for the district within which the prisoner is incarcerated.
      Trigg v. Moseley, 433 F.2d 364, 366 (10th Cir. 1970).

      . While the Petitioner brought this action under 28 U.S.C. § 2255, that section is clearly inapplicable since he is not collaterally attacking a federal sentence. Similarly, 28 U.S.C. § 2254 is inapplicable, since he is not suing state officials, whether in the indicting or in the confining state. The only proper jurisdictional basis for this suit is 28 U.S.C. § 2241, the general habeas corpus provision. See Soyka v. Alldredge, 481 F.2d 303, 304 (3d Cir. 1973).

      . See also Waddell v. Alldredge, 480 F.2d 1078 (3d Cir. 1973), in which we held that a prisoner suing in mandamus under 28 U.S.C. § 1361 must first exhaust available administrative remedies, even though the remedies there were not provided by statute but by a Bureau of the Persons Policy Statement.

      . In the event that a prisoner’s request for disposition of the underlying charges is not acted upon within 180 days, there remains the question of whether a prisoner thereafter may immediately seek habeas corpus in federal court. In Jennings, supra, we remanded to the district court to determine whether the prisoner there had exhausted the remedies provided by the indicting state, despite previously noting that he had promptly complied with the procedural requirements of the Interstate Agreement. Since Jennings involved a suit under 28 U. S.C. § 2254, which explicitly requires the exhaustion of state remedies, it does not necessarily require a similar result for actions brought by federal prisoners under § 2241. At the present time, however, we express no opinion as to whether Grant would be required to exhaust Connecticut state remedies by seeking dismissal of the charges and by appealing to higher Connecticut courts if his request under the Interstate Agreement is not acted upon within 380 days.

      . See, e. g., Kane v. State of Virginia, 419 F.2d 1369, 1373 (4th Cir. 1970), where the court enunciated the following prerequisites to federal habeas corpus relief:
      (1) that the prisoner demanded a speedy trial,
      (2) that the state nevertheless failed to make a diligent effort to obtain him for trial, and
      (3) that he has exhausted his state remedies as required by 28 U.S.C. § 2254 by seeking dismissal of the charges against him because of unconstitutional delay.
      Furthermore, the court in Kane held that only one of the three, prisoners in that case, the one who liad sought further judicial relief after failing to obtain a favorable ruling from the trial court, had exhausted his state remedies. On the necessity to exhaust appellate remedies, see Loren v. State of Texas, 440 F.2d 1182 (5th Cir. 1971); Trigg v. Moseley, 433 F.2d 364 (10th Cir. 1970); Note, Developments — Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1095-97 (1970).

      . In view of this conclusion, we need not consider whether the Supreme Court’s recent decision in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), mandates that this action be brought only under habeas corpus.

      . See, e. g., Spock v. David, 469 F.2d 1047, 1051-1052 (3d Cir. 1972); Sedivy v. Richardson, 485 F.2d 1115, 1122-1125 (3d Cir. 1973) (Adams, J., concurring); Burnett v. Tolson, 474 F.2d 877 (4th Cir. 1973).

      . We therefore find it unnecessary to consider whether, if the Petitioner had alleged the requisite $10,000 of damages, he would nevertheless be required to exhaust his remedies pursuant to the Interstate Agreement before suing under § 1331.


source: Caselaw Access Project

author: LEVIN H. CAMPBELL, Circuit Judge.

license: Public Domain

text:
    George GETTY, Plaintiff-Appellant, v. BOSTON AND MAINE CORPORATION, Defendant-Appellee.
    No. 74-1174
    United States Court of Appeals, First Circuit.
    Argued Oct. 7, 1974.
    Decided Nov. 15, 1974.
    James F. Freeley, Jr., Boston, Mass., with whom Louis A. Guidry and Feeney & Freeley, Boston, Mass., were on brief for plaintiff-appellant.
    John J. O’Brien, Boston, Mass., with whom John J. C. Herlihy and Hale, Sanderson, Byrnes & Morton, Boston, Mass., were on brief, for defendant-ap-pellee.
    Before COFFIN, Chief Judge, and ALDRICH and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

In this FELA action plaintiff appeals from a judgment entered upon a directed verdict in favor of defendant railroad. At the close of plaintiff’s evidence the district court ruled that there was nothing upon which a jury could find that plaintiff had been within the scope of his employment at the time he was injured. Since such a finding is a prerequisite for recovery under the FELA, 45 U.S.C. § 51, the court granted defendant’s motion for a directed verdict. Fed.R.Civ.P. 50(a). We affirm.

Appellant was employed by defendant as a carman. His duties consisted of repairing cars and engines of defendant in defendant’s engine house located on the boundary line between Charlestown, Massachusetts, and Somerville, Massachusetts. Appellant’s workday began at the engine house at 7 a. m. and continued until 3 p. m.; he was not compensated for commuting time. Shortly after 6 a. m. on the day of the accident appellant drove his automobile from his home to defendant’s train station in Woburn, Massachusetts, a distance of approximately a quarter of a mile. He intended to board one of defendant’s regularly scheduled passenger trains which made a practice of stopping at the engine house to let off railroad employees working there. (The train would then proceed to Boston’s North Station to discharge regular passengers.) Appellant had a pass which entitled him to free use of defendant’s trains. However, the railroad did not require him to use any special mode of conveyance to and from work, and appellant commuted sometimes by car and sometimes by train.

During the previous night it had snowed heavily, and the deep snow surrounding the Woburn station had not yet been removed when appellant arrived. The new fallen snow lay over packed snow and ice accumulated from previous storms. After parking his automobile, appellant proceeded on foot towards the station platform, but before reaching it he slipped and fell, severely breaking his right leg.

Appellant argues that on these facts, considered in the light most favorable to him, Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962), a jury could find him to have been in the course of his employment at the time he slipped and fell. He recognizes that this court adopted an apparently contrary construction in Metropolitan Coal Co. v. Johnson, 265 F.2d 173 (1st Cir. 1959). There we held that a railroad employee, injured while riding one of his employer’s passenger trains to the place where his work was to begin, was not yet within the scope of his employment for FELA purposes. (Like appellant, Johnson had been furnished a free pass on his employer’s trains.) The district court thought that Metropolitan Coal and a Third Circuit case cited therein, Sassaman v. Pennsylvania R.R., 144 F.2d 950 (3d Cir. 1944), controlled the present action.

It is appellant’s contention that he comes within an exception implied in Metropolitan Coal for an employee who is “required to go to work on the defendant’s passenger train.” 265 F.2d at 178. See also Sassaman, supra, 144 F.2d at 953. He argues that the heavy snowfall made alternative routes unavailable, compelling him to utilize defendant’s train on the morning of the accident. Thus, he says, he was required to traverse the Woburn station’s parking lot as an incident of his employment.

But we do not believe that a commuting railroad worker brings himself within FELA coverage merely by demonstrating that on a given day outside conditions, such as inclement weather, made it impracticable for him to use a means of travel other than his employer’s train. The sort of necessity referred to in Metropolitan Coal must, we think, stem more directly from a specific requirement of his job or a specific understanding as to his mode of travel. There will always be circumstances outside the employer’s control conditioning an employee’s choice: on a particular day the employee’s spouse may need the family car, he may lack money to use other transportation when free rail transit is available, the energy shortage may place gasoline in short supply, or he may have chosen to do without a car and live near the station for convenient commutation. While any of these circumstances might make alternative ways of commuting impracticable on a given day, this result must ultimately be attributed to employee decisions over which the employer ordinarily has no control. A rule of exception must yield predictable consequences, and, absent circumstance indicating a special arrangement with one’s employer, subjective conditions resulting from employee choices of where to live and how to travel are insufficiently related to employment to determine the coverage of the federal statute.

One commuting to work is ordinarily not deemed to be within the course of his employment. It was determined in Metropolitan Coal that Congress did not intend this usual principle to be altered by the fortuity that the injured commuter was employed by the utility within whose conveyance he was riding as a passenger. The situation may change if getting to work requires the employee to face unique hazards, or if the employer takes away the employee’s freedom of choice as to means of travel. In the latter case, the employer’s insistence upon a particular means would strongly suggest that in using that means the employee was conferring some benefit upon the employer. But where the choice is left entirely to the employee, we do not think that incidental practicalities should alter the general rule that the commuting employee is outside the course of his employment.

The Third Circuit in Sassaman indicated that any exception claimed on the ground of necessity must stem from “employer compulsion.” We need not lay down a rule in hard and fast terms. “Each case must be decided on its peculiar facts and ordinarily no one feature of the relationship is determinative.” Baker v. Texas & Pacific Ry., 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 756 (1959), quoting Cimorelli v. New York Central R.R., 148 F.2d 575, 577 (6th Cir. 1945). We are satisfied that compulsion due to a freak weather condition does not serve to bring an otherwise excluded commuter within the scope of FELA coverage. Appellant was confronted by the icy surface around the Woburn station exactly as were all the other commuters utilizing defendant’s trains. See Parker v. Long Island R.R., 425 F.2d 1013, 1015-1016 (2d Cir. 1970) (Friendly, J., dissenting). We perceive no reason why he should receive favored treatment simply because he happened to be employed by the operator of the public conveyance.

The judgment of the district court is affirmed.

      . The court in Metropolitan Coal took note that the plaintiff employee was
      “not on a part of [the] premises which it was necessary for him to use to reach his work. He was not required to go to work on the defendant’s passenger train. He could have taken any one of a number of other routes, trains or means of transportation to go from his home to his work.”
      265 F.2d at 178. The court did not, of course, say that those alternative means were particularly realistic options, given the length of the journey (from Rhode Island to Boston) and the availability of a free railroad pass.

      . State workmen’s compensation statutes have sometimes been differently construed. See, e. g., Brown v. Pittsburgh Ry., 197 Pa.Super. 68, 177 A.2d 5 (1962); Micieli v. Erie R.R., 131 N.J.L. 427, 37 A.2d 123 (1944). But see Tallon v. Interborough Rapid Transit Co., 232 N.Y. 410, 134 N.E. 327 (1922); Jacksonville Coach Co. v. Love, 101 So.2d 361 (Fla.1958). See generally 1 A. Larson, Workmen’s Compensation § 17.20 (1972).

      . See Metropolitan Coal Co. v. Johnson, 265 F.2d 173, 178 (1st Cir. 1959); cf. 1 A. Larson, Workmen’s Compensation § 15.13 (1972).

      . “There was absent, therefore, the employer compulsion as to the mode of travel to and from work which serves to attach or continue the employee relationship, away from the place of employment, and makes an interstate employee’s right of recovery for injury remediable under the [FELA].”
      144 F.2d at 953.

      . For tactical reasons appellant elected not to append any common law claims to his FELA counts. Thus, the availability of relief under state law is not before us.


author: DONALD RUSSELL, Circuit Judge:

text:
    Nathaniel WRIGHT, III, et al., Appellees, v. Delbert C. JACKSON et al., Appellants.
    No. 74-1353.
    United States Court of Appeals, Fourth Circuit.
    Argued June 6, 1974.
    Decided Nov. 8, 1974.
    David P. Sutton, Washington, D. C. (C. Francis Murphy, Louis P. Robbins and Richard W. Barton, Washington, D. C., on brief), for appellants.
    Geoffrey Judd Vitt, Alexandria, Va. (Cohen & Rosenblum, Alexandria, Va., William H. Allen, Michael A. Schlanger, David S. Weissbrodt, and Covington & Burling, Washington, D. C., on brief), for appellees.
    Before WINTER, RUSSELL and WIDENER, Circuit Judges.
   DONALD RUSSELL, Circuit Judge:

The District of Columbia maintains a number of prisons where persons convicted of crimes committed within the District are confined. Among such prisons is the Lorton Reformatory which, by a special Act of the Congress, was constructed outside the District in Northwest Virginia. As an integral part of the District prison system, however, administrative control of Lorton, as does that of all other prisons in the system, rests entirely with the District of Columbia Department of Corrections.

The plaintiffs-appellees, all of whom are inmates of Lorton, have filed this class action, complaining that, in disciplinary proceedings as conducted at Lorton, the plaintiffs and all other inmates of Lorton are denied their due process rights. The defendants-appellants are the Director of the District of Columbia Department of Corrections and various officials at Lorton itself. The plaintiffs seek injunctive relief. Two other actions brought by other inmates of the District prison system and involving the same issues and seeking similar relief are pending in the District Court of the District of Columbia.

The defendants by their answer, among other pleas, raised the issue that the proper forum for the disposition of plaintiffs’ claims was either the Superi- or Court or the District Court of the District of Columbia. The District Court seemingly overruled the defendants’ contention of inappropriate forum, proceeded to dispose of the action on the merits, and entered a comprehensive decree setting forth in considerable detail the procedures to be observed by the District of Columbia Department of Corrections in disciplinary proceedings at Lorton. This appeal followed. We remand with instructions.

After the entry of the judgment of the District Court herein, the Supreme Court in Wolff v. McDonnell (1974), 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, authoritatively resolved the due process rights of prison inmates in disciplinary proceedings. While a number of the due process requirements established by the District Court complied with the rules authorized by the Supreme Court in Wolff, some of them went beyond what the Supreme Court mandated. For this reason, the judgment of the District Court will be vacated and the cause remanded to the Court for further proceedings in light of Wolff.

Apart from the validity of the judgment below on the merits, however, the defendants complain of the exercise of jurisdiction over the cause by the District Court of Virginia. We find this contention deserving of earnest consideration. In Canada Malting Co. v. Paterson Co. (1932), 285 U.S. 413, 423, 52 S.Ct. 413, 415, 76 L.Ed. 837, Justice Brandeis said:

“ * * * Courts of equity and of law also occasionally decline, in the interest of justice, to exercise jurisdiction, where the suit is between aliens or nonresidents or where for kindred reasons the litigation can more appropriately be conducted in a foreign tribunal.”

This authoritative admonition for restraint in the exercise of jurisdiction in those cases where there is a more appropriate forum was quoted by Justice Jackson in his exposition of the doctrine of forum non conveniens in the leading case of Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055. After quoting from Canada Malting and observing that “[t]he principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute”, Justice Jackson, speaking for the Court in that case, said (p. 505, p. 841 of 67 S.Ct.):

“ * * * On substantially forum non conveniens grounds we have required federal courts to relinquish decision of cases within their jurisdiction where the court would have to participate in the administrative policy of a state.”

Both Gulf and Canada Malting, it is true, predated the enactment of Section 1404, 28 U.S.C. That section, however, was not designed to overturn or restrict the doctrine of forum non conveniens as it was articulated in those cases but, among other reasons, rather to enlarge it and make its exercise more equitable. Norwood v. Kirkpatrick (1955), 349 U.S. 29, 32, 75 S.Ct. 544, 99 L.Ed. 789. That this is so is evident from this statement by Judge Maris, long chairman of the Committee on Civil Rules, in Hoffman v. Goberman (3d Cir. 1970), 420 F.2d 423, 426:

“A district court may in the interest of justice decline to pass upon the merits of a controversy and relegate the plaintiff to a more appropriate forum. Indeed, as between the district courts of the United States, transfer to a more appropriate federal forum is expressly authorized by statute. 28 U.S.C. § 1404(a).”

This case presents, it would seem, just that unusual ease envisaged by Gulf and Canada Malting, where the Court should decline to decide the merits of the controversy in deference to “a more appropriate federal forum”. Actually, we are not dealing here merely with a single separate and independent prison operating under its own individual rules and procedures. What is concerned here is the validity of the operating procedures for all the prisons operated by the Correctional Department of the District of Columbia. Those procedures have been adopted and are to be applied under guidelines fixed by the District Correctional Department in which is vested jurisdiction over all such prisons, whether physically located in the District or without. Those procedures are intended to apply not merely to Lorton but to all the other prison installations in the entire system. Lorton is thus but one of the institutions affected. But this Court — this District Court of Virginia — is limited in its determination of the validity of those procedures as they apply to inmates of that single installation at Lorton. That is the sole District prison physically within the jurisdiction of a Virginia District Court. The decree of the Virginia District Court can accordingly have no effect on or control over the procedures followed in the other installations of the District of Columbia’s prison system. Those other installations are in the District of Columbia and their officials are not subject to in-junctive processes issuing from the Courts of the Virginia District. On the other hand, the Courts of the District of Columbia, before which actions involving these same issues are pending, have jurisdiction over the District of Columbia Department of Corrections and its officials and, through them, over all the prisons, including Lorton, within the entire District’s prison system.

It must be remembered that Lorton, though physically in Virginia, has, as has been emphasized, a “unique relationship to the District of Columbia” and its courts; it is an integral part of that District’s governmental operations and its officials are subject to any decree entered by the District Courts of the District of Columbia. The jurisdiction, under authority of whose courts its prison inmates were confined, and by whose administrative officials control over its prison facilities is exercised, have, as the Court in Preiser v. Rodriguez (1973), 411 U.S. 475, 492, 93 S.Ct. 1827, 36 L.Ed.2d 439, observed, such a peculiarly “intimate” relationship with the operation of those facilities as to give to that jurisdiction a primacy in the disposition of any equitable complaints relating to the operations of those facilities that will not prevail in other circumstances and instances or in the administration of other statutes having national application. Because of its jurisdiction over all the prisons in the District of Columbia system and this “intimate” relationship with them and their officials, the District Courts of the District of Columbia can do what the District Court of Virginia cannot do: They can enter a decree that will have universal application throughout the entire prison system of the District of Columbia and covering all the officials in that system, establishing thereby a uniform procedure in all the prisons for disciplinary proceedings and avoiding the confusion likely to result from having the operations of the several units of the District’s prison system subject to injunctive processes issued by separate federal courts.

Common sense, as well as sound judicial administration, argues against having two separate decrees from two separate courts where a single decree from a single court will suffice. Piece-meal fashioning of remedies for the inmates of the District prison system, prison by prison, by the District Court of the District of Columbia and in the District Court of Virginia, is an intolerable waste of judicial effort and imposition on both courts when the entire issue can be resolved by the formulation of a single decree by one of the District Courts that will apply system-wide. All this can easily be avoided by transferring this case to the District Court of the District of Columbia, to be decided along with the other cases pending before it. In that way, there can be a single decree binding on all prisons in the District’s prison system; in that way there will be uniformity in the treatment of inmates of any of the prisons; and, finally, in that way, the administrator of the District Correctional System will be supervised by a single court and that the court of the very jurisdiction which had imposed on the inmates of the prison their sentences. In sum, administrative convenience, judicial efficiency, and avoidance of any possibility of conflict between courts all combine to support the wisdom of transfer in this case on principles of comity, as those principles were expressed in Preiser v. Rodriguez, supra, where the Court, after remarking that, “[T]he relationship of state prisoners and the state officers who supervise their confinement is far more intimate than that of a State and a private citizen”, said:

* * -x- The strong considerations of comity that require giving a state court system that has convicted a defendant the first opportunity to correct its own errors thus also require giving the States the first opportunity to correct the errors made in the internal administration of their prisons.” (411 U.S. at 492, 93 S.Ct. at 1837)

We direct, therefore, that, upon remand, the District Court, even though its “jurisdiction [over the action] is authorized by the letter of a general venue statute”, decline to decide the action on its merits and transfer the cause to the District Court of the District of Columbia for decision.

Remanded with directions.

      . Cf., Section 24-442, D.C.Code, 1973.

      . These actions were stayed pending the disposition of this case — presumably because this case was filed earlier than the actions in the District of Columbia. Since, however, this case must be remanded it has no real precedence in terms of trial progress over the two cases in the District of Columbia; all of the cases will necessarily call for a consideration of the standards established in Wolff. The plaintiffs can, therefore, suffer no substantial delay in the adjudication of their rights, whether those rights are determined in the District Court of the District of Columbia or in the District Court of Virginia.

      . The defendants’ contention is set forth in the fourth defense of their answer :
      “These defendants say that the appropriate forum to consider plaintiffs’ allegations, regarding the operation of the District of Columbia Correctional facility at Lorton, Virginia, is the Superior Court of the District of Columbia, which court has jurisdiction to consider equitable claims and claims of denial of constitutional rights, and to grant any relief to which plaintiffs may show they are entitled whether as a matter of equity or of constitutional right. In the alternative, the defendants say that the United States District Court for the District of Columbia is the appropriate forum to consider plaintiffs’ allegations.”

      . 330 U.S. at 507, 67 S.Ct. at 842.

      . See Young v. Director, U. S. Bureau of Prisons (1966), 125 U.S.App.D.C. 105, 367 F.2d 331. This case reiterated the rule earlier established that a suit filed by a disaffected federal prisoner against the Board of Parole in the District of Columbia would normally be transferred to the District where the prisoner was actually incarcerated. But the Court, in order to emphasize that Lorton was a part of the judicial system of the District of Columbia, indicated that a different rule would apply if the prisoner were incarcerated at Lorton and that jurisdiction in the District of Columbia would be retained in a suit involving an inmate of Lorton. Thus, the Court said (367 F.2d at p. 333, n. 8) :
      “Of course, were the district court to find that some other district would best suit ‘the convenience of parties and witnesses’ or ‘the interest of justice’ in a given case, today’s decision would not preclude a transfer to such court. Similarly, because of its unique relationship to the District of Columbia, different considerations may well apply to actions instituted by inmates of the Lorton Keformatory, Lorton, Virginia.

      . In their answer as well as in argument in this Court, the defendants have argued that the preferable forum for this controversy is the Superior Court of the District of Columbia under the terms of the District Court Reform Act. The actions pending in the District of Columbia are, however, in the District Court and that is the only court to which the District Court, under the terms of Section 1404, can transfer this action. Whether the District Court of the District of Columbia chooses to or can itself transfer jurisdiction to the Superior Court is a matter better resolved by that Court, with its superior acquaintance with the District Court Reform Act.


author: FRANKEL, District Judge:

text:
    UNITED STATES of America, Appellee, v. Wincel HENDRIX, Appellant.
    No. 1231, Docket 74-1603.
    United States Court of Appeals, Second Circuit.
    Argued Aug. 14, 1974.
    Decided Oct. 15, 1974.
    Gavin W. Scotti, Asst. U.S. Atty., E. D. N.Y. (David G. Trager, U.S. Atty., Raymond J. Dearie, Asst. U. S. Atty., E. D.N.Y., Brooklyn, N. Y., of counsel), for appellee.
    Michael A. Young, William J. Gallagher, The Legal Aid Society, New York City, for appellant.
    Before OAKES, Circuit Judge, and FRANKEL and KELLEHER, District Judges.

       Of the Southern District of New York and the Central District of California, respectively, sitting by designation.

   FRANKEL, District Judge:

Convicted upon seemingly powerful evidence, and sentenced to concurrent terms of which the longer is for 10 years’ imprisonment, the defendant complains that the trial judge committed reversible error by adding two years to what the sentence might otherwise have been because he was convinced beyond a reasonable doubt that the defendant had perjured himself. A lesser question is whether there was prejudicial impropriety in Judge Mishler’s intervention to press for corroboration of testimony by defendant’s wife on his behalf after she had volunteered that such corroboration was available. Rejecting both grounds of appeal, we affirm the conviction.

I.

On the evening of June 22, 1973, the appellant was arrested under a warrant charging unlawful heroin dealings for which he was thereafter convicted in the Southern District of New York and sentenced to a three-year term he is now serving. At the time of the arrest he was carrying a paper bag that contained a number of packages of mannite, a substance commonly used to dilute narcotics. Later in the night, at the law enforcement office to which he was taken, an inventory search produced from appellant’s pocket 2.4 grams of cocaine wrapped in tin foil and six marihuana cigarettes. A far more damning haul, however, was taken elsewhere.

While appellant was being arrested, narcotic officers were executing a search warrant for his house in Elm-hurst, Queens. Appellant was taken to the house and detained there while the search proceeded. The officers found in the master bedroom more than a pound of cocaine in a shopping bag which also contained two pounds of mannite and two measuring spoons. Another brown shopping bag held two pounds of marihuana and a quantity of hashish. Among the other things in the master bedroom were a scale and measuring pan on a bedside table; a suitcase near the bed holding more mannite, a bottle of lactose, two strainers, a measuring spoon, and two rolls of aluminum foil; a metal box containing currency and coins amounting to over $3,000, a holster, and a supply of .38 caliber cartridges; and a jewelry box on a dressing table in which was a tin foil package of about four grams of cocaine. Elsewhere in the house were found a small amount of marihuana and eleven marihuana cigarettes.

Before the search had ended an officer in charge began to order removal of some mirrors in a basement bar to see if they concealed contraband. The appellant protested, with apparent success, that this action, costly to repair, was unnecessary because the agents already had everything.

Testifying in his own defense, appellant said he had “tried” cocaine and marihuana, but that he knew nothing of the quantities of these substances or of the other paraphernalia found in his bedroom. He said the mannite he’d been carrying was for a friend named John. He was employed, he said, as a garage man and parking attendant earning, according to his tax returns, some $6,000 to $7,000 a year. He also told that he had since 1966 been buying a new Cadillac automobile every two years and that for his house, priced at $64,000, he made a $36,000 down payment in November 1972, $10,000 in a certified check and $26,000 in currency.

Supporting the latter point, appellant’s wife testified that $10,000 of the down payment had come from relatives and $12,000 from “hitting” a number. As for the $3,000 in currency and coins found in the bedroom, Mrs. Hendrix explained that she and her brother owned a boutique in Atlanta for which he sent her money periodically to purchase clothing. On cross-examination she could not remember any stores where she had made such purchases, but volunteered that her brother, to whom she sent the bills, would be able to help her with this information. The district judge’s suggestion that she use a recess to call her brother gives rise to the second, and less consequential, of the arguments on appeal.

II.

Following the highly desirable course of making explicit a factor he deemed material for the sentence, United States v. Velazquez, 482 F.2d 139, 142 (2d Cir. 1973); United States v. Brown, 479 F.2d 1170, 1172-1173 (2d Cir. 1973), Judge Mishler said he was “convinced beyond a reasonable doubt” that appellant had perjured himself (as did his wife) on the witness stand. More pointedly, he said this was “the most outrageous situation of perjury in any trial” he had seen in some 13 years on the bench. Noting that the stories told under oath had been “bizarre to say the least,” the judge went on to say:

“. . .1 think defendants should be encouraged to take the witness stand but when they take the witness stand I think they must understand that there is a certain risk they take, they better tell the truth.
“I feel I added about two years for perjury during the trial in my sentence.”

In this, appellant says, the trial judge erred, so that there must be a resentenc-ing. We reach the point on the merits despite the normal unreviewability of federal sentences. Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); cf. A.B.A. Minimum Standards for Criminal Justice, Appellate Review of Sentences (Approved Draft 1968). For the contention is, of course, that the consideration of perjury was impermissible, carrying the judge outside the wide range of discretion in sentencing. Cf. United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); McGee v. United States, 462 F.2d 243, 245-246 (2d Cir. 1972); United States v. Malcolm, 432 F.2d 809, 815-816 (2d Cir. 1970). Having reached the contention, we reject it.

The appellant urges in substance that to punish him by an enhanced sentence for perjury amounts to a kind of conviction for another crime without the safeguards of indictment and trial. But this ignores the nature of the sentencing process as it exists in our system and of the factors the trial judge may consider in exercising a frequently enormous range of discretion. If there is no clear consensus on these factors, it is certainly clear that they include, as aggravating circumstances, conduct that is not literally “criminal,” or at least has not been duly adjudged criminal in the case in which sentence is being imposed. Prior convictions may cause a heavier sentence, though the defendant has already “paid” for them. A general course of dissolute, irresponsible, shiftless, or dangerous behavior may be deemed to call for longer incarceration though none of its components are, strictly, “crimes.” “The aim of the sentencing court is to acquire a thorough acquaintance with the character and history of the man before it.” United States v. Doyle, 348 F.2d 715, 721 (2d Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965). And so, in the cited case and elsewhere, United States v. Cifarelli, 401 F.2d 512, 514 (2d Cir.), cert. denied, 393 U.S. 987, 89 S.Ct. 465, 21 L.Ed.2d 448 (1968), this court has held that crimes on which there has been no conviction may be considered as calling for increased punishment. The same is true even for evidence of counts on which a defendant is acquitted. United States v. Sweig, 454 F.2d 181, 184 (2d Cir. 1972). Materials like these are surely not less reliable in any pertinent sense than the standard kinds of information presentence reports contain. Even assuming that controverted assertions in such reports may be aired in a hearing, or that hearsay may be taken at a discount, cf. Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); United States v. Doyle, supra, 348 F.2d at 721, the judge’s use and appraisal of a vivid trial circumstance, after adversary testing, is scarcely to be deemed less reliable. See United States v. Sweig, supra, 454 F.2d at 184.

The appellant invokes as his main support the case of Scott v. United States, 135 U.S.App.D.C. 377, 419 F.2d 264 (1969). Announcing the court’s decision there, Chief Judge Bazelon first diseussed the trial judge’s apparent lengthening of the sentence because the defendant failed to make a “clean breast” and show remorse after trial. Holding that the “pressure placed upon him to confess his guilt after trial” (p. 267) entitled defendant to be resen-tenced in any event, the Chief Judge went on to treat “two other considerations” (p. 268), including the sentencing judge’s evident reliance upon his belief that the defendant had committed perjury during the trial. This aspect of the decision, given the other grounds treated at length in the first opinion as well as the separate opinions of the two other panel members, supplies at best an uncertain measure of support for the present appellant. To the extent the D. C. Circuit leans that way, we are led respectfully to differ.

The five other Circuits addressing the question, according to counsel’s and our own researches, have likewise disagreed, both before and since, with this aspect of Scott v. United States, supra,. The Tenth Circuit, in Humes v. United States, 186 F.2d 875, 878 (1951), held it “entirely proper ... to consider the character” of the defendant as reflected in his own, and his inducement of another’s, perjury at the trial. The Seventh Circuit likewise marked such a circumstance “as a reflection of the character of the person before the court for sentencing.” United States v. Levine, 372 F.2d 70, 74 (1963). The Sixth Circuit has said that an “inescapable” demonstration of defendant’s perjury is a fact the sentencing judge might well be derelict in ignoring. United States v. Wallace, 418 F.2d 876, 878 (1969), cert. denied, 397 U.S. 955, 90 S.Ct. 987, 25 L.Ed.2d 140 (1970). Completing the roster, see United States v. Moore, 484 F.2d 1284, 1287 (4th Cir. 1973) (but see also Craven, J., dissenting), and United States v. Cluchette, 465 F.2d 749, 754 (9th Cir. 1972).

The effort to appraise “character” is, to be sure, a parlous one, and not necessarily an enterprise for which judges are notably equipped by prior training. Yet it is in our existing scheme of sentencing one clue to the rational exercise of discretion. If the notion of “repentance” is out of fashion today, the fact remains that a manipulative defiance of the law is not a cheerful datum for the prognosis a sentencing judge undertakes. Compare Bazelon, C. J., with Leventhal, J., in Scott v. United States, supra, 419 F.2d at 269 and 282, respectively. Impressions about the individual being sentenced — the likelihood that he will transgress no more, the hope that he may respond to rehabilitative efforts to assist with a lawful future career, the degree to which he does or does not deem himself at war with his society— are, for better or worse, central factors to be appraised under our theory of “individualized” sentencing. The theory has its critics. While it lasts, however, a fact like the defendant’s readiness to lie under oath before the judge who will sentence him would seem to be among the more precise and concrete of the available indicia.

The appellant protests that this position threatens a “chilling effect” for the defendant considering whether to take the stand. Without denying that the point has substance, we may say that it is not wholly evil to discourage defendants from taking the stand to lie. On the other side of the scale, most sentencing judges would probably acknowledge a disposition to encourage “cooperation’^ — truth-telling to aid law enforcement — by considering it a factor in defendant’s favor.

The danger remains that defendants may be caused unduly to refrain from testifying because of fear that the jury’s or the judge’s disbelief will automatically lead to an increased sentence. There are better modes of dealing with the problem, however, than a flat and unrealistic rule that perjury at the trial must never be considered. First, as a matter of unscientific observation and introspection, we suggest that trial judges generally are (or become) sophisticated and experienced enough to know that the convicted defendant who took the stand is not ipso facto a perjurer. Second, to encourage a measured approach to the subject, we hold today that in the future perjury should not be treated as an adverse sentencing factor unless the judge is persuaded beyond a reasonable doubt that the defendant committed it. Short of that, we share the Fourth Circuit’s view that the evidence of false trial testimony should be bypassed for sentencing purposes and left to the United States Attorney for possible prosecution. United States v. Moore, supra, 484 F.2d at 1288.

In the present case, as has been noted, even retrospective application of the rule now announced would lead to affirmance. Defense counsel at the sentencing acknowledged the inescapable fact that “the jury chose not to believe Mr. Hendrix’s version of the facts. . . .” This was a case where the jury could not have convicted without being persuaded beyond a reasonable doubt that the appellant had lied, deliberately and wilfully. The trial judge concurred in that unanimous persuasion.

III.

The remaining question is a shorter subject. Mrs. Hendrix, in the episode generating this issue, had explained the bedroom cache of over $3,000 in paper money and coins as having been sent by her brother to purchase things for an Atlanta store she claimed to own jointly with him. When she could not remember the stores at which she had ever made such purchases, the following ensued:

“Q. You don’t remember the name of any of these stores ?
“A. No, but I can get them.
“Q. How can you get them ?
“A. I have to call my brother.
“Q. Your brother has them ?
“A. I send the bills to him.
“The Court: Would you like a short adjournment so you can call your brother. You may step down. We’ll take a ten minute recess.
“The Witness: The store is not open today and I’ll call—
“The Court: Step down and do the best you can. We’ll take a ten minute recess.
“(Whereupon jurors were excused from the courtroom.)”

In the jury’s absence there was colloquy that reflected the trial judge’s apparent skepticism concerning Mrs. Hendrix’s devotion to the truth. While appellant quotes these lines at length, they do not help him.

We need not explore fully for this case the extent to which “[a] trial judge conducting a case before a jury in the United States courts is more than a mere ‘moderator,’ ” United States v. Brandt, 196 F.2d 653, 655 (2d Cir. 1952). The dangers of straying too far or too often from the moderator’s role have been signaled often enough in the decisions of this court. E.g., United States v. Fernandez, 480 F.2d 726, 735-738 (2d Cir. 1973); United States v. Nazzaro, 472 F.2d 302, 307-313 (2d Cir. 1973); United States v. Guglielmini, 384 F.2d 602, 605 (2d Cir. 1967). We are satisfied that the judge’s intervention in this case, prompted by a gratuitous but presumably verifiable “explanation” from the witness, was wholly in bounds. The effort to find material error in this episode attests to the commendable zeal of counsel, but cannot serve to nullify appellant’s conviction.

Affirmed.

      . The sentence questioned on the present appeal was ordered to run concurrently with the Southern District’s. The latter conviction was affirmed without opinion. United States v. Hendrix, 502 F.2d 1162 (2d Cir., 1974).

      . Mrs. Hendrix said, on both direct and cross, that she had “hit the number” in 1973. When the date of the down payment was called to her attention, she said her hit might have been in 1972 after all.


author: ROSS, Circuit Judge.

text:
    Robert E. HANSON, Appellant, v. HUNT OIL COMPANY, a foreign corporation, Appellee.
    No. 74-1243.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 13, 1974.
    Decided Nov. 22, 1974.

      Albert A. Wolf, Wheeler, Wolf, Wef-ald & Durick, P. C., Bismarck, N. D., for appellant.
    Thomas A. Mayer, Fleck, Mather, Strutz & Mayer, Ltd., Bismarck, N. D., for appellee.
    Before VOGEL, Senior Circuit Judge, and ROSS and WEBSTER, Circuit Judges.
   ROSS, Circuit Judge.

In this diversity action Robert E. Hanson appeals from a final judgment dismissing his complaint upon motion of the defendant Hunt Oil Company (Hunt). Prior to this dismissal the trial court struck portions of the complaint and rejected Hanson’s offer of proof on these portions on the grounds of res judicata. When Hanson offered no proof as to the remaining allegations in the complaint the court dismissed it.

The trial court held that the offer of proof and the portion struck from the complaint in the present case represent a cause of action essentially the same as another cause of action which had been finally adjudicated adversely to Hanson in a prior case litigated in the same court by the same parties. In that earlier case the court found for the defendant, dismissed the complaint and entered judgment for the defendant on its counterclaim. This judgment was affirmed on appeal. Hanson v. Hunt Oil Co., 438 F.2d 690 (8th Cir. 1971). The controlling issue in this current appeal, therefore, is whether the trial court properly applied the doctrine of res judicata to strike portions of the complaint and to reject the offer of proof. We hold that it did and affirm.

On August 24, 1961, Hanson entered into a letter agreement and unit agreement with Hunt whereby three producing oil wells in North Dakota in which he had a working interest became part of a unitization project known as the North Tioga-Madison Unit. A controversy subsequently developed between Hanson and Hunt, the operator of the unit, as to the meaning of that portion of the letter agreement dealing with the manner in which Hanson was to repay, out of the production of his wells, certain sums advanced by Hunt to Hanson to offset costs of unitization incurred by Hanson. Hanson brought an action in the district court, but his complaint was dismissed. This Court reversed and remanded, holding that the trial court had erred in not admitting parol evidence to support Hanson’s claim for reformation of the contract and in not allowing Hanson to amend the complaint to more clearly state his reformation claim. Hanson v. Hunt Oil Co., 398 F.2d 578, 581-582 (8th Cir. 1968).

Upon remand, the trial court allowed the amendment and held a trial to the court in which parol evidence was admitted. The case was heard and considered along with another related action in which Hunt Industries sued Hanson to recover under a gasoline plant contract executed by Hanson with Hunt Industries in connection with the unitization. The court then entered judgment denying Hanson the prayed for reformation and awarding Hunt $19,634.38 on its counterclaim for Hanson’s share of expenses incurred in operating the unitized oil field. In the second case the court awarded Hunt Industries $40,295.85 for Hanson’s share of the cost of the operation of the gasoline plant. On appeal this Court affirmed these judgments. Hanson v. Hunt Oil Co., 438 F.2d 690 (8th Cir. 1971).

The instant action was then commenced by Hanson. In it he alleges that Hunt wrongfully destroyed his wells and eliminated them from production while contending that the payment formula in the letter agreement was on the basis of actual production of these wells (the interpretation approved by the court in the earlier action). Additionally, Hanson prays for an accounting and for compensatory and exemplary damages.

The trial court struck those portions of the complaint which appeared to challenge the validity of the 1961 agreement and which alleged that Hunt had not performed in accordance with that agreement. The court specifically advised the parties that the issues were limited to: (1) negligent misconduct discovered after December 31, 1969 (the cutoff date for the accounting in the previous action); (2)- deliberate misconduct discernable after December 31, 1969, and not discernable before, which destroyed the wells; (3) accounting after December 31, 1969; (4) damages. Since the proof offered by Hanson went to the validity of the agreement and alleged wrongful acts prior to December 31, 1969, it was rejected. Hanson refused to offer further proof as to conduct subsequent to December 31, 1969, and the trial court dismissed the action.

The doctrine of res judicata is well established and provides simply that

when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound “not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195.

Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948). See also Pepper v. Bankers Life and Casualty Co., 414 F.2d 356, 357-358 (8th Cir. 1969); Towle v. Boeing Airplane Co., 364 F.2d 590, 592 (8th Cir. 1966); 1B J. Moore, Moore’s Federal Practice ¶ 0.405 [1] (2d ed. 1965). This doctrine is followed by the North Dakota courts also. Robertson Lumber Co. v. Progressive Contractors, Inc., 160 N.W.2d 61, 76-77 (N.D.1968), appeal dismissed sub nom., Continental Casualty Co. v. Robertson Lumber Co., 394 U.S. 714, 89 S.Ct. 1951, 22 L.Ed.2d 671 (1969); Knutson v. Ekren, 72 N.D. 118, 5 N.W.2d 74, 77 (1942).

Hanson, however, argues that the doctrine is not applicable here because the instant lawsuit does not present the same cause of action as the prior one and “[a]s a general proposition, the conclusive effect of res judicata is limited to the same cause of action.” IB J. Moore, supra, ([ 0.410 [1], at 1151.

Various tests have been advanced for determining what constitutes a cause of action for res judicata purposes. Some of these are:

whether the same right is infringed by the same wrong; whether “there is such a measure of identity that a different judgment in the second [action] would destroy or impair rights or interests established by the first” judgment; identity of grounds; whether the same evidence would suffice to sustain both judgments.

IB J. Moore, supra, j[ 0.410[1], at 1158 (footnotes omitted). This Court has stated more broadly that “[i]n the final analysis the test would seem to be whether the wrong for which redress is sought is the same in both actions.” Woodbury v. Porter, 158 F.2d 194, 195 (8th Cir. 1946).

Professor Moore has summarized the broad approach to this question taken by leading authorities and gives the rationale therefor in the following language :

Courts and the public have an interest, in addition to that of litigants, in a sound application of res judicata to the end that there be stability in a final judgment rendered on the merits and that repetitive litigation be avoided. In the main, a broad and practical concept of “cause of action” will best promote that interest, at least whenever the forum, such as the federal, has a procedure which enables a claimant to put forward all grounds, and a defendant all defenses, whether these grounds or defenses be legal and/or equitable and whether they be consistent or inconsistent.

IB J. Moore, supra, |[ 0.410[1], at 1163 (footnote omitted). See Williamson v. Columbia Gas & Electric Corp., 186 F.2d 464, 469-470 (3d Cir. 1950), cert. denied, 341 U.S. 921, 71 S.Ct. 743, 95 L.Ed. 1355 (1951); Wilson Cypress Co. v. Atlantic Coast Line R. R., 109 F.2d 623, 627 (5th Cir.), cert. denied, 310 U.S. 653, 60 S.Ct. 1101, 84 L.Ed. 1418 (1940).

We agree with this broad approach and believe that insofar as Hanson’s complaint and offer of proof sought to relitigate matters concerning interpretation of the letter agreement and performance by Hunt under that agreement and the unit agreement prior to December 31, 1969, it was essentially the same cause of action as had been previously litigated and was barred by res judicata. In substance the causes are the same, even if the form is different. See Wilson Cypress Co. v. Atlantic Coast Line R. R., supra, 109 F.2d at 627.

Analysis of the pleadings and judgment in the prior case reveals that the principal thrust of the litigation was on the issue of reformation of the 1961 letter agreement. However, the complaint also alleged destruction of one of Hanson’s wells and evidence on this issue was introduced at the trial. Additionally, the complaint prayed for an accounting. Hunt’s counterclaim sought recovery for Hanson’s proportionate share of operating costs of the unitized field, while the action brought by Hunt Industries sought recovery for Hanson’s proportionate share of the costs of operating the gasoline plant. Exhibits introduced at the prior trial included a complete breakdown of all proceeds derived from the wells in question including the amount of actual production, the amount and manner of the allocation of proceeds, credits taken, assessment of operating costs, interest on unpaid operating costs and the payments and the recoupment from unit production and gasoline plant income of the loan to Hanson, along with the interest thereon and a portion of the operating costs. All of these items were part of the final accounting between the parties which was approved by the trial court.

The court not only refused to reform the contract, but made a specific finding of fact that “the Defendant’s [Hunt’s] actions with respect to the accounting and allocation of income to the Plaintiff’s [Hanson’s] account were in accordance with the intentions of the parties and their agreement.” One of the court’s conclusions of law was that “the Defendant, Hunt Oil Company, has complied with the provisions of the agreement and has acted in accordance with the intentions of the parties and the agreement.”

From the foregoing it can be seen that the previous action raised or should have raised every matter concerning the interpretation of the contract and the operation of the field prior to the final accounting of December 31, 1969.

Those portions of the complaint struck by the trial court and the offer of proof in the present ease attempt to raise anew questions concerning Hunt’s operation of the field under the contract prior to the end of 1969. Although Hanson framed his complaint herein in terms of negligent and willful destruction of his wells and a failure to monitor actual production, this does not help him, for res judicata binds the parties “not only as to all matters litigated and determined by [the earlier] judgment, but also as to all relevant issues which could have been presented.” Hudson v. American Surety Co., 377 F.2d 698, 699 (8th Cir. 1967). The previous litigation brought into question not only the interpretation of the contract but Hunt’s operation of the field under that contract. The issues raised now concerning destruction of wells and monitoring actual production could have and should have been presented during that earlier litigation. Clarke v. Redeker, 406 F.2d 883, 885 (8th Cir.), cert. denied, 396 U.S. 862, 90 S.Ct. 135, 24 L.Ed.2d 115 (1969).

For the foregoing reasons the judgment of the district court is affirmed.


text:
    Augustus F. HEALD, Petitioner-Appellant, v. Garrell S. MULLANEY, Warden, Maine State Prison, et al., Respondents-Appellees.
    No. 74-1171.
    United States Court of Appeals, First Circuit.
    Heard Sept. 10, 1974.
    Decided Nov. 13, 1974.
    Certiorari Denied Feb. 24, 1975.
    See 95 S.Ct. 1339.

      Peter L. Murray, Portland, Me., by appointment of the Court, with whom Murray, Plumb & Murray, Portland, Me., was on brief, for petitioner-appellant.
    John W. Benoit, Jr., Deputy Atty. Gen., Augusta, Me., for respondents-appellees.
    Before COFFIN, Chief Judge, MOORE, Senior Circuit Judge, and CAMPBELL, Circuit Judge.

       Of the Second Circuit sitting by designation.

   LEVIN H. CAMPBELL, Circuit Judge.

Augustus F. Heald appeals from a denial by the district court of his petition for writ of habeas corpus. Heald is serving a sentence imposed by the Penobscot County, Maine, Superior Court, after his conviction by a jury as an accessory before the fact to an armed robbery. The only issue on appeal arises from the state trial judge’s instruction that the jury make special findings in the event of a not guilty verdict. While disapproving the instructions, the Maine Supreme Judicial Court rejected Heald’s contention that the error was of constitutional dimension or required reversal of the conviction. State v. Heald, 307 A.2d 188 (Me.1973). The district court agreed. We affirm.

Heald was tried on two indictments, one charging him as an accessory before the fact, and another as accessory after the fact, to a robbery committed on September 16, 1970, by Robert Frazier. The state’s case was exceedingly strong. The assistant manager of the Nite-Owl store in Brewer, Maine, testified that he was held up on the evening of September 16 by two men whom he identified in court as, John Hanson and Robert Frazier. The latter held a pistol while Hanson collected the cash. Hanson, Frazier and Frazier’s brother, Harley, were prosecution witnesses. Hanson and Frazier admitted to the robbery, and all three testified to substantially the following: They had met on the sixteenth at appellant Heald’s house in Belfast, Maine. In company of Heald and his woman companion, they drove around in a car drinking. Robert Frazier and Heald discussed robbery, and Heald said he knew of a small place to rob, directing them to the Nite-Owl, which they drove by. Heald handed Robert Frazier a gun. They parked near but out of sight of the Nite-Owl, and Frazier and Hanson left the car, returning after having committed the robbery. While they were gone, the others including Heald waited inside the car. Later the robbers divided with Heald part of $385 seized from the store.

The defense concentrated on trying to undermine the credibility of the state’s witnesses. No alibi or other evidence contradicting the state’s version was later presented.

When the state rested, Heald moved for a judgment of acquittal on both indictments. Concerning the charge of accessory before the fact, Heald’s counsel argued that if the state’s evidence was believed, it showed that Heald was a principal, not an accessory. A principal, Heald argued, could not be convicted under an indictment charging him as an accessory.

The court denied the motion, although for technical reasons not germane here it later dismissed Heald’s indictment as an accessory after the fact. The case went to the jury on the remaining indictment; and the court, in its charge, accepted the defense theory that if Heald was, in fact, a principal he must be acquitted. The court explained at length to the jury the distinction between accessory and principal. It pointed out that an accomplice who is actually present at a crime is a principal, whereas an absent person who counsels or procures the commission of a crime is an accessory. Additionally, the court explained that an accomplice who is “constructively” but not actually present may be a principal. Under Maine law, as at common law, one standing by to render assistance (a lookout, for example) is constructively present, hence a principal. Heald, it was clear, was not actually present; but there was a question whether his proximity in the getaway car made him a principal because of constructive presence.

After the judge had explained these rather complicated rules, he told the jury that it must acquit Heald if it found him to be a principal. The court then told the jury that because of the peculiar nature of the case, it was to make special findings in the event of a not guilty verdict. The jury was to answer “Yes” or “No” to two written questions. The first was whether it found the defendant not guilty “only because he was constructively present at the scene of the crime.” The second was whether its finding of innocence was “based upon the fact that the State failed to prove the elements of the crime of accessory before the fact beyond a reasonable doubt.” These questions, appellant says, were constitutional error.

After the charge, Heald objected to “recording a verdict in special findings, a special verdict.” The jury began its deliberations at 12:25, recessed for lunch from 12:35 to 2:05, and at 3:45 requested the judge to repeat his instructions as to principal and accessory. This was done, and the jury again retired at 4:12, returning at 4:20 with a guilty verdict.

Heald argues that any use of special verdicts and special questions in criminal cases is so alien to the Anglo-American tradition of trial by jury as to deny due process of law under the fourteenth amendment. He says that to require a jury to particularize or explain its general verdict of “guilty” or “not guilty” must inevitably undermine its independence. The instant case is said to be especially bad because a special finding was required only in the event of a “not guilty” verdict. Heald concludes that once it has been shown that such “impermissible interference” has occurred an appellate court “cannot second-guess the jury to determine whether the error was ‘harmless’ ”.

Our review of appellant’s habeas corpus petition is the “narrow one of due process, and not the broad exercise of supervisory power that we would possess in regard to our own trial court.” DeChristoforo v. Donnelly, 473 F.2d 1236, 1238 (1st Cir. 1973), rev’d on other grounds, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). We must decide whether putting the special questions here — an action conceded to be error under Maine criminal procedures — deprived Heald of “that fundamental fairness essential to the very concept of justice.” Donnelly v. DeChristoforo, 416 U.S. at 642, 94 S.Ct. at 1871, quoting Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941). We think it did not.

This circuit’s views on special questions in a federal criminal case are set forth in United States v. Spock, 416 F.2d 165 (1st Cir. 1969). We held that there was a danger that such questions would “catechize” a reluctant juror away from an acquittal towards a seemingly more “logical” conviction. Yet

“the jury, as the conscience of the community, must be permitted to look at more than logic. . . . If it were otherwise there would be no more reason why a verdict should not be directed against a defendant in a criminal case than in a civil one. The constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly.” Id. at 182.

Spock is in accord with general disapproval of special questions and verdicts in federal criminal cases. The third circuit wrote in 1946,

“Special verdicts in criminal eases were not unknown at common law in England at the time of the adoption of our Constitution. . . . They have, however, become virtually unknown in federal criminal practice. . . . No provision for them is made in the Federal Rules of Criminal Procedure.” United States v. Noble, 155 F.2d 315, 317 n. 4 (1946).

See also Gray v. United States, 174 F.2d 919 (8th Cir.), cert. denied, 338 U.S. 848, 70 S.Ct. 90, 94 L.Ed. 519 (1949); United States v. Adcock, 447 F.2d 1337 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 278, 30 L.Ed.2d 252 (1971); United States v. James, 432 F.2d 303 (5th Cir. 1970), cert. denied, 403 U.S. 906, 91 S.Ct. 2214, 29 L.Ed.2d 682 (1971); United States v. McCracken, 488 F.2d 406 (5th Cir. 1974). The only circuit to express a contrary view in recent years did so in dicta which may not reflect full consideration. Fuller v. United States, 132 U.S.App.D.C. 264, 407 F.2d 1199, 1231 n. 47 (1968). There is precedent, however, even within the federal judicial system for a limited use of special jury findings, usually in connection with sentence: a jury could be asked to determine whether the death penalty is to be imposed or whether the value of stolen property was more or less than $100. See generally 2 Wright, Federal Practice and Procedure § 512 (1969); Spock, supra, 416 F.2d at 182 n. 41.

The states generally decline to permit special verdicts and questions in criminal proceedings, although there are exceptions. See, e. g., State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964) (separate verdicts on issues of paternity, non-support, and guilt utilized in criminal bastardy proceedings); Cal.Penal Code § 1150 et seq.

Viewed against this background we do not believe that a mechanical per se rule of unconstitutionality is warranted for all special questions in criminal cases. In Spock we were exercising our supervisory powers and, therefore, did not have to reach constitutional ground. 416 F.2d at 180. To be sure, Spock condemned special questions in terms of their effect upon the independence of juries, a ground going to the institutional integrity of juries and having plain constitutional implications. See note 3 supra. We have little doubt that, in general, the use of special questions and verdicts in any criminal proceeding, state or federal, is suspect not only as a matter of sound judicial policy but of due process as well.

We know, however, that special questions have been permitted for some very limited purposes even in federal criminal proceedings. We cannot say that every specialized use that may emerge under state procedures and statutes necessarily violates the due process clause. Some usages may be exempt from the dangers described in Spock; for example, certain questions may plainly lack any capacity to catechize, color or coerce the jury’s decision making.

In any event, our function is not to draw global rules for all seasons but to examine the fairness and propriety of the actual procedures to which Heald was exposed. Upon doing so, we are satisfied that the two special questions were harmless and that Heald received a trial before an impartial jury whose independence was not placed in jeopardy.

It must be borne in mind that the two questions were merely designed to record whether an acquittal — had there been one — was based on the usual considerations (viz., that guilt had not been proven) , or whether it was based on a further defense-sponsored theory that if Heald was also a principal, he could not be convicted as an accessory. The latter theory was, it turned out, erroneous. See note 1 supra. Paradoxically, it made Heald’s chances better the deeper his criminal involvement. By presenting that mistaken theory to the jury, the judge enlarged Heald’s chances for acquittal, and it is difficult to see how the jury’s consideration of questions designed only to distinguish between the alternate grounds of acquittal could have done him harm. Neither question called for an answer leading towards a verdict of guilt. The jury remained at all times free to acquit for the usual reasons; and the requirement that it label such an acquittal by saying “Yes” to the question whether the state had failed to prove its case, does not, in this context, seem a significant burden. There is no suggestion whatever that responding to the questions was ever meant by the judge to place any inhibitions upon the jury’s right to acquit. To the contrary, the judge instructed at elaborate length on the jury’s duties to acquit for failure of proof beyond a reasonable doubt, and the trial was conducted throughout with patience and conspicuous attention to the rights of the accused.

Nor are we impressed with the argument that acquittal-minded jurors may have voted to convict to avoid perplexity or disputes with fellow jurors over answering the questions. The relative brevity of their deliberation lends little weight to this speculation, and it can as well be argued that by having two strings to his bow, appellant received a windfall. Moreover, any confusion over the questions would be traceable to the introduction of an alternate theory of acquittal more generous than Heald deserved — one which Heald himself had promoted. It was Heald’s own success in-persuading the court to adopt this dubious theory that ultimately prompted the special questions. It seems inconceivable to us, as it did to the Maine Supreme Judicial Court and to the district court, that the two questions could have been so misinterpreted by jurors as to work a subtle infringement on their freedom to acquit for any reason, logical or illogical.

We therefore agree with the Maine Supreme Judicial Court that the trial court’s erroneous use of special questions in the state criminal proceeding did not in these unique circumstances amount to a denial of due process or violate Heald’s concomitant right to trial before an impartial jury. Cf. Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973).

Affirmed.

      . On appeal, the Maine Supreme Judicial Court characterized this instruction as “more favorable to the appellant than the law required.” It ruled that one who has participated in an offense as a principal may, if the evidence warrants, be convicted as an accessory. State v. Heald, 307 A.2d 188, 197-198 (Me.1973).

      . “Now, because of the peculiar nature of this case, and it’s only peculiar, I only say that, because I have been involved in this distinction between whether a person is a principal or an accessory, and as I have told you, if he is a principal, he cannot be convicted as an accessory. I am going to have the jury make some special findings, only in the event that there is a not guilty verdict. Your verdict ordinarily, Mr. Foreman, is returned orally. When you have completed your deliberations, you will notify the jury officer that you have so reached a verdict, and you will be returned to the courtroom. At that time the Clerk will ordinarily orally say to you, ‘Mr. Foreman, has the jury agreed upon a verdict?’, and you will respond, ‘We have’, and the Clerk will then say, ‘Mr. Foreman, what say you, is the defendant at the Bar guilty of the offense as charged, or not guilty?’, and then you would say ‘Guilty’ or ‘Not guilty’ as the case may be. In this case, in the event that there is a ‘Not guilty’ verdict, the Court is asking that a jury make an alternate finding, because the Court must know whether or not — or what the jury’s finding is with respect to whether you have found this defendant to be a principal or an accessory, or whether you have not found him to be there at all, or found that the proof is insufficient to warrant his conviction as an accessory. So you will have with you, Mr. Foreman, in the jury room two questions, and I will read it to you and you will examine it. ‘If the verdict of the jury is “Not guilty”, the jury will answer one of the following special findings : “We find the defendant not guilty only because he was constructively present at the scene of the crime”.’ In other words, the Court wishes to know whether or not the jury — or I should say, the Court wishes to know what the jury’s finding is on the issue of whether he was constructively present or not constructively present, and that your decision of guilt or innocence was based — or your decision of innocence was based on that finding, or we want to know whether or not your decision of innocence was based upon the fact that the State failed to prove the elements of the crime of accessory before the fact beyond a reasonable doubt. So you will answer the appropriate question either ‘Yes’ or ‘No’, as the case may be, and then, Mr. Foreman, you will sign on the blank on the line provided for the Foreman’s signature. This is all you will do, and this will be in addition to the returning of the verdict, as I have explained it to you.”

      . In Duncan v. Louisiana, 391 U.S. 145, 149, 194, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491, 522 (1968), the Court held that the fourteenth amendment guarantees to defendants in state cases “a right of jury trial in all criminal cases which — were they to be tried in a federal court — would come within the Sixth Amendment’s guarantee.” Duncan does not, however, require a state to adopt every detail of federal jury practice. See, e. g., Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (approving state criminal jury of less than 12). It is those procedures necessary to the jury’s essential purpose that appear to be constitutionally protected. The Williams Court said the purpose of the jury trial was
      “to prevent oppression by the Government. ‘Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.’ . . . Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence.”
      399 U.S. at 100, 90 S.Ct. at 1905.

      . On appeal, the Supreme Judicial Court held that
      “since neither judicial precedent, nor any Maine statute, nor the Maine Rules of Criminal Procedure so provides, . . . the use of special findings in criminal cases is not compatible with our traditional practice. . . . We conclude that it was error to require the jury to respond to the interrogatories in the event of a ‘not guilty’ verdict, but we hesitate to characterize the error as necessarily of constitutional dimension.”
      State v. Heald, supra note 1, 307 A.2d at 192. The Main court noted that while a few jurisdictions permit special questions in criminal cases, most jurisdictions disapprove, although seldom on constitutional grounds. After examining our decision in United States v. Spock, 416 F.2d 165 (1st Cir. 1969), the court concluded that special interrogatories do not violate constitutional guarantees of due process and trial by jury unless of the type designed “to lead the jurors down the guilty trail” so that the verdict becomes but a “ ‘hollow affirmation’ from jurors catechized by the questions they have been compelled to answer.” State v. Heald, supra note 1, 307 A.2d at 193. Since these were not of that type and because the evidence of guilt was overwhelming, the court found no reason to reverse. Indeed, both the Supreme Judicial Court and the district court took the view that even if special questions amounted to constitutional error, the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18. 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

      . The Supreme Court has never dealt with the issue conclusively. See Stein v. New York, 346 U.S. 156, 178, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953).

      . See, e. g., Jalbert v. United States, 375 F.2d 125 (5th Cir. 1967) (asking jurors whether the value of stolen property was more or less than $100).


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Marvin MILLER et al., Defendants-Appellants.
    No. 71-1850.
    United States Court of Appeals, Ninth Circuit.
    Nov. 6, 1974.
    Harvey Giss, of Isman & Giss (argued), Los Angeles, Cal., for defendants-appellants.
    Brian J. O’Neill, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.
    Before CHAMBERS, KOELSCH and CARTER, Circuit Judges.
   OPINION

PER CURIAM:

The Supreme Court, on June 25, 1973, vacated the judgment in the above case and remanded it to this court for reconsideration. 413 U.S. 913, 93 S.Ct. 3030, 37 L.Ed.2d 1022.

We reaffirm the convictions and adopt our previously reported opinion in 455 F.2d 899, on the authority of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) and Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

The materials in question are clearly obscene. If they were obscene under the old definition set forth in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), it follows that they were obscene under the new broader definition of obscenity set forth in Miller v. California, supra.

The defendants’ contention that 18 U.S.C. § 1461 (mailing obscene matter) is void for vagueness was decisively rejected in Hamling, supra, 418 U.S. at 16-118, 94 S.Ct. at 2908. The question of whether a local or a national standard should be applied in this federal prosecution was not raised below or on appeal. Expert testimony was introduced by the Government to the effect that the content of the picture magazines and the books appeals to a prurient interest and that the books contained no social redeeming value. The testimony did not indicate whether it was based on a local or a national standard.

In Hamling, supra, the Supreme Court rejected the position of the First Circuit (see, e. g., United States v. Pal-ladino, 490 F.2d 499 (1973)) that a national standard must be applied in federal obscenity prosecutions. To the contrary the Court accepted the use of “contemporary community standards” without defining the geographical limits of that community.

Miller, supra, and Hamling, supra, having resolved all of defendants’ contentions on appeal against them, their convictions are reaffirmed.


text:
    Charles A. SMITH, dba Smith Landscaping and Excavating, Plaintiff-Appellant, v. MACK TRUCKS, INC., and Automotive Equipment of Washington, Defendants and Third Party Plaintiffs-Appellees, v. DETROIT DIESEL—ALLISON DIVISION OF GENERAL MOTORS CORPORATION, Third Party Defendant-Appellee.
    No. 73-2234.
    United States Court of Appeals, Ninth Circuit.
    Nov. 8, 1974.
    Edward J. Reasor (argued), Anchorage, Alaska, for plaintiff-appellant.
    Paul A. Williams (argued), of Burr, Pease & Kurtz, Inc., Anchorage, Alaska, for defendants and third party plaintiffs-appellees.
    Before BROWNING, ELY and GOODWIN, Circuit Judges.
   OPINION

PER CURIAM:

The disappointed purchaser of a new Mack Truck appeals from a summary judgment in favor of the seller in this diversity claim for consequential damages.

In support of its motion for summary judgment under Fed.R.Civ.P. 56, the seller filed an affidavit and an exhibit setting forth its version of the facts. The purchaser failed to file a counteraffidavit, but orally asserted in the district court that unresolved questions of fact existed. (The only possible question of fact was whether or not a disclaimer of warranty appearing in the purchase order had been “bargained for” within the meaning of Washington law.) A legal memorandum handed to the court in opposition to the summary judgment also purported to tender factual questions, but did not constitute an affidavit or other evidence within the meaning of Rule 56(e).

On this record, there was no error. Legal memoranda and oral argument, in the summary-judgment context, are not evidence, and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment. James v. The H.M.S. Port Lyttleton Port Line Limited, 51 F.R.D. 216, 218 (E.D.Pa.1971). Further, any allegations fact contained in appellant’s complaint do not create an issue against a motion for summary judgment supported by affidavit. First National Bank v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Chapman v. Rudd Paint & Varnish Co., 409 F.2d 635, 643 (9th Cir. 1969); C. Wright, Federal Courts § 99, at 444 (1970).

Affirmed.


author: PER CURIAM.

text:
    In re Rudolph William STUCKENBERG, Jerome W. SIDEL, Trustee in Bankruptcy, Appellant, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF NORMANDY, Appellee.
    No. 74-1357.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 12, 1974.
    Decided Dec. 4, 1974.
    Donald R. Wilson, St. Louis, Mo., for appellant.
    Michael J. Doster, St. Louis, Mo., for appellee.
    Before GIBSON, Chief Judge, CLARK, Associate Justice, Retired, and WEBSTER, Circuit Judge.

       Associate Justice Tom O. Clark, United States Supreme Court, Retired, sitting by designation.

   PER CURIAM.

The trustee in bankruptcy appeals an adverse determination of the District Court that First Federal Savings, the mortgagee of real property owned by the bankrupt, is entitled to the rents collected by it on the mortgaged premises after bankruptcy. The District Court’s Memorandum Opinion and Order, reported at 374 F.Supp. 15 (E.D.Mo.1974), set aside that portion of the Referee’s order which required First Federal to turn over the rents from two of the five apartment units in the mortgaged premises.

Upon a careful consideration of the record, briefs, and arguments of the parties, the Court has concluded that the decision of the District Court should be affirmed on the basis of the reasons set forth in Judge Regan’s opinion. We think that the District Court correctly applied Missouri law to the undisputed facts in the record. When viewed in the totality of the circumstances appearing in the record, the District Court’s conclusion that First Federal was a mortgagee in possession before bankruptcy is correct and entitled to affirmance upon appeal.

For these reasons the judgment appealed from is affirmed.

      . The Honorable John K. Regan, United States District Judge for the Eastern District of Missouri.


text:
    BALDWIN COOKE COMPANY, Plaintiff-Appellee, v. KEITH CLARK, INC., Defendant-Appellant.
    No. 74-1570.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 22, 1974.
    Decided Nov. 4, 1974.
    Gordon T. King, Coudert Brothers, New York City, John D. Dewey, Eugene M. Cummings, Chicago, 111., for defendant-appellant.
    Theodore W. Anderson, Chicago, 111., for plaintiff-appellee.
    Before TONE, Circuit Judge, KIL-KENNY, Senior Circuit Judge, and CAMPBELL, Senior District Judge.

       Senior Circuit Judge John F. Kilkenny of the United States Court of Appeals for the Ninth Circuit and Senior District Judge William J. Campbell of the Northern District of Illinois are sitting by designation.

   PER CURIAM.

Defendant Keith Clark, Inc. appeals from a District Court judgment and decree enjoining defendant from infringing plaintiff Baldwin Cooke Company’s copyrights on its “Executive Planner.” We affirm the judgment and decree of the District Court and adopt the opinion of that court, Baldwin Cooke Co. v. Keith Clark, Inc., 383 F.Supp. 650 (N.D.Ill.1974).

Affirmed.