author: WEBSTER, Circuit Judge.

text:
    Johnson Kenneth EVANS, Appellant, v. Theodore JANING, Sheriff of Douglas County, Nebraska, et al., Appellees.
    No. 73-1156.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 14, 1973.
    Decided Dec. 28, 1973.

      Martin A. Cannon, Omaha, Neb., for appellant.
    Mel Kammerlohr, Asst. Atty. Gen., Lincoln, Neb., for appellees.
    Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.
   WEBSTER, Circuit Judge.

In this appeal from the order of the District Court denying habeas corpus relief, Johnson Kenneth Evans asserts two constitutional challenges to the eyewitness identifications upon which his state robbery conviction depended: (1) that the eyewitness testimony was tainted by a prior uncounselled photographic display; and (2) that the state prejudiced his defense by failing to produce evidence favorable to the accused in the form of a police report showing one eyewitness had failed to identify a photograph of Evans. We uphold the order of the District Court and affirm.

On the morning of September 20, 1968, two men entered a small grocery store in Omaha, Nebraska, owned and operated by Arthur Haffke. Haffke and his son, Warren, were the only other persons in the store. The larger of the two men asked Arthur Haffke where the milk counter was located. Haffke, suspicious because the “big fellow” had whiskey on his breath, transferred a gun from beneath the counter to his pocket. After three to five minutes, during which Haffke observed the men carefully, they returned to the checkout stand. The larger man had a carton of milk and asked for a pack of cigarettes. When Haffke opened the cash register drawer, the big man pushed him against the wall and reached into the till; then both men fled. Haffke fired his pistol, wounding the smaller man, James Nathaniel Wright. The big man escaped.

Appellant Evans promptly became a suspect because of his friendship with Wright. Four days after the robbery, Evans received word that the police wanted to talk to him about the robbery. He went to the police station “to find out what it was about.” He was then arrested on the robbery charge.

On September 2, 1969, nearly one year later, Evans and Wright were jointly arraigned at a preliminary hearing at which Arthur Haffke identified Evans, a Negro, as one of the robbers. Questioned about prior identification of photographs, he testified that police officers had come to his store and had shown him “a whole bunch” of photographs and had asked him, “Is that man in here that pushed you?” Haffke testified that he indicated a color photograph of a man who had a yellow streak down the center of his hair was the same man, but the streak was not there at the time of the incident; he identified Evans “by his face.” Haffke further testified that his recollection at the time of the hearing was independent of the photographs.

Evans came to trial March 10, 1970, eighteen months after the robbery. The only evidence of Evans’ participation was the positive in-court identification testimony of the two Haffkes. Neither expressed any doubt that Evans was the “big fellow” who had pushed Arthur Haffke, tapped the till, and escaped. Evans’ defense was based on the testimony of his employer that Evans was at work at the time of the crime. Evans also presented his probation officer, Patrick Krell, who testified that prior to and after the robbery Evans had a yellow streak in his hair. Evans’ testimony in his own behalf was consistent with that of his employer and Krell.

Both Haffkes were examined generally about the appearance of the “larger” robber, but neither was asked whether the robber had a yellow streak in his hair. The existence of the photo display was not brought out at trial. Evans was found guilty by the jury and was sentenced to five to seven years.

Counsel for Evans on this appeal represented James Wright both in his criminal defense and in a civil suit brought by Wright against Haffke based on injuries resulting from the shooting. During the civil proceedings in Wright v. Haffke, No. 613, District Court of Nebraska, Douglas County, a police report of Sergeant John B. Gallagher surfaced, and its contents are the subject matter of this appeal.

The police report, dated September 27, 1968, reads:

I contacted HAFFKE, Art for the purpose of showing him mug photos. I first showed him four colored Polaroid mug photos; Two of them being Evans, Kenneth, who’s hair had a yellow streak in front. Haffke could not pick any one from this group of photos.
I then showed Haffke three black & white regular mug photos: EVANS, OPD #68069; COLEMAN, OPD #46162 and GOODSON OPD #47187. Haffke immediately pointed to Evans, OPD #68069 stating that this look [sic] like the man who pushed him away from his cash register and then reached into the cash drawer and took money out and ran out of the store. This photo of Evans was taken in 1967.
Haffke stated that on the day of the robbery Evans did not have any yellow streaks in his hair.

All photos held as evidence.

Evans’ motion for a new trial, based in part on the police report, was denied. The Nebraska Supreme Court affirmed the lower court’s order; Evans then filed a habeas corpus petition in the United States District Court of Nebraska, which was denied by Judge Robert V. Denney; this appeal followed.

I

Appellant first attacks the photographic display because he was not at the time represented by counsel. That argument was recently laid to rest in United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), in which the Supreme Court expressly held that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the government for the purpose of allowing a witness to attempt an identification of the suspect. See also United States v. Long, 449 F.2d 288 (8th Cir. 1971), cert. denied, 405 U.S. 974, 92 S.Ct. 1191, 31 L.Ed.2d 247 (1973).

Next, appellant argues that Gallagher was unduly suggestive in his manner of presenting the photographs to Arthur Haffke. It is true that Evans’ picture appeared in two of the four color photographs which were shown and in one of the black and white photographs which were next exhibited to Haffke. There is no evidence that Gallagher intimated to Haffke which photograph was of the suspected robber. And it may well be argued that appellant’s contention that Haffke failed to identify the color photographs of Evans is inconsistent with his contention that the display was unduly suggestive. In any event, an invalid photo display only taints an in-court identification where there is no independent basis for such identification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In this case, Haffke’s independent basis for identification was well established. We find no prejudice here.

II

Appellant next contends that the failure to produce the police report deprived him of due process of law. A preliminary overview of the evolving law of favorable evidence will aid in focusing upon the specific challenge presented in this case. A prosecutor has a duty to disclose material evidence favorable to the accused. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This duty is mandated by the fairness requirement of the due process clause and is consistent with his general obligation to seek justice above victory. United States v. Hibler, 463 F.2d 455 (9th Cir. 1972). This duty of candor, while substantial, is not all encompassing. It neither requires full disclosure as in civil cases nor permits a “combing of the prosecutors’ files” in search of evidence possibly useful to the accused. It has been limited to evidence favorable to the accused, material to his guilt or punishment, and evidence affecting the credibility of a key witness when his reliability may be determinative of guilt or innocence. Unlike the exclusionary rule of Mapp and Miranda, the duty of disclosure enunciated in Brady v. Maryland is designed to assure the fundamental right to a fair trial rather than penalize law enforcement officers for conduct encroaching upon an accused’s constitutional rights. *Suppression has consistently been used synonymously with nondisclosure. Thus, while deliberate suppression might ease a defendant’s burden of proving materiality, the duty to disclose is measured without regard for the good faith or bad faith of the prosecution.

A three-pronged test to be applied in nondisclosure cases was announced in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562 (1972), wherein the Supreme Court stated:

The heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence.

408 U.S. at 794-795, 92 S.Ct. at 2568. We therefore must test appellant’s claim of due process violation by the same considerations.

(A.) Was There Suppression?

The first question is simply whether at or before the trial the prosecutor knew or should have known of the report while defense counsel was unaware of its existence. County Attorney Francis R. Pane stated on April 20, 1971 that he was aware of Sergeant Gallagher’s report prior to the trial, that he had seen the photographs referred to in the repoi't, that he never advised defense counsel of the existence or contents of the report, and that he had no reason to believe that defense counsel had any knowledge of the existence of the report. Assistant Public Defender, Lynn R. Carey, Jr., one of the attorneys who conducted Evans’ defense, testified at the same time that he had requested to see the police reports on Evans, had seen at least some of them, but had never seen Sergeant Gallagher’s report before April, 1971. On this undisputed record, it is apparent that Gallagher’s report was not disclosed within the meaning of Brady.

The Supreme Court has always discussed the disclosure duty in terms of a “defense production request”, without, however, holding that a failure to request is in all circumstances a waiver of the right. On the contrary, it has held that where the suppression is deliberate or the nondisclosure shocks the conscience of the court, a defense request is not necessary. Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). The record in this case reveals no deliberate suppression or shocking nondisclosure. It does reveal that the prosecutor knew of Gallagher’s report and did not disclose it. In such cases, the Second Circuit has concluded the failure of a defendant to request production does not excuse the prosecution from coming forward, but rather imposes upon the defendant a higher standard of materiality. United States v. Keogh, 391 F.2d 138 (2d Cir. 1968). In an opinion written by Judge Friendly, the court said:

There remains a third category of eases — where the suppression was not deliberate in either of the senses we have included and no request was made, but where hindsight discloses that the defense could have put the evidence to not insignificant use. While we do not dispute that relief may sometimes be granted even in such cases, the standard of materiality must be considerably higher.
* * X * X X
The request cases also stand on a special footing; the prosecution knows of the defense’s interest and, if it has failed to honor this even in good faith, it has only itself to blame. Failure to appreciate the use to which the defense could place evidence in the prosecution’s hands, or forgetfulness that it exists when a development in the trial has given it a new importance, are quite different. Since this must happen to the most scrupulous prosecutors and the issue of deterrence scarcely arises, the problems of the courts and the wider interests of society unite to require a substantially higher probability that disclosure of the evidence to the defense would have altered the result. To invalidate convictions in such cases because a combing of the prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict would create unbearable burdens and uncertainties.

391 F.2d at 147-48.

Our court has intimated a similar approach where no formal request for production was made. In Williams v. Wolff, 473 F.2d 1049 (8th Cir. 1973), we held that there was no duty to inform the defense of the possible testimony of a witness which would not be exculpatory, impeaching or inconsistent with the state’s theory of guilt. We said:

In so holding we follow the teachings of Brady v. Maryland, supra, but without the suggested expansion that the constitutional duty there enunciated encompasses as well any evidence which might conceivably aid the defense in the preparation of its case. 473 F.2d at 1054.

Thus, for purposes of Moore v. Illinois, supra, we hold that the evidence was suppressed by knowing nondisclosure, deferring to our discussion of materiality, infra, the effect of Evans’ failure to request production.

(B.) Was the Evidence Favorable to the Defendant?

Without considering the degree of fa-vorability, we have no difficulty in finding that a police report which states that the eyewitness failed to identify a photograph of the defendant would be potentially useful to the defendant and therefore favorable to his defense. In United States v. Ash, supra, the Supreme Court observed:

Selection of the picture of a person other than the accused, or the inability of a witness to make any selection, will be useful to the defense in precisely the same manner that the selection of a picture of the defendant would be useful to the prosecution.

413 U.S. at 318, 93 S.Ct. at 2578.

The burden of demonstrating that the evidence was of a favorable nature is thus a very slight one. The more crucial burden is the third test in Moore, the materiality of the evidence.

(C.) Was the Evidence Sufficiently Material?

The undisclosed police report states that Sergeant Gallagher exhibited the photographs to Arthur Haffke seven days after the robbery. Four photographs were in color, two of which were of Evans, clearly showing a yellow streak in his hair; three were in black and white, one being of Evans without the yellow streak. The report states that Haffke could not identify the robber from the color photographs, but picked out the black and white picture of Evans as looking like the robber.

Haffke consistently asserted that the man who robbed him did not have a yellow streak in his hair. At the preliminary hearing, Haffke testified that he had identified the color photograph of Evans but that the streak of yellow was not in Evans’ hair at the time of the robbery. Haffke testified both at the preliminary hearing and at the trial that Evans was the “big” robber. Warren Haffke, who was never shown a photo and was not called at the preliminary hearing, also testified at trial that Evans was the other robber.

This was an eyewitness case. At the trial, defense counsel did not cross-examine either of the Haffkes about the yellow streak. Arthur Haffke testified at the preliminary hearing that his recollection was independent of the photographs. Thus, the sole purpose for which the police report might have been used in evidence would have been to impeach the testimony of the key witness.

In Link v. United States, 352 F.2d 209 (8th Cir. 1965), we held that suppressed impeachment evidence requires a higher standard of materiality than would be imposed for evidence directly relevant to guilt.

Of course, any suppression of evidence favorable to an accused, ‘where the evidence is material ... to guilt’, can constitute a violation of due process. . . . Evidence material to guilt is, we think, evidence which is of probative character on that question. As to evidence not of that character and having admissibility only for the purpose of impeachment or credibility attack, nondisclosure or suppression, to be violative of due process, would in our opinion, unless the situation is otherwise tainted, have to be of such inherent significance as to represent fundamental unfairness.

352 F.2d at 212.

In United States v. Kahn, 472 F.2d 272, 287 (2d Cir.), cert. denied, 411 U.S. 982, 93 S.Ct. 2270, 36 L.Ed.2d 958 (1973), the court said:

If the government’s nondisclosure is merely inadvertent, and does not involve evidence whose high value to the defense could not have escaped notice, . a somewhat stronger burden is put on the defendant. While the movant is still not required to show the probability of a different verdict upon retrial, setting aside a conviction is only called for when there is “a significant chance that this added item, developed by skilled counsel as it would have been could have induced a reasonable doubt in the minds of enough jurors to avoid a conviction.”

Warren Haffke, who was not shown the photographs, positively identified Evans. We do not find in this case that “significant chance” that the police report would induce a reasonable doubt in the jurors’ minds; nor do we find, under our own standard, that nondisclosure of the impeachment evidence was of such inherent significance as to represent fundamental unfairness. Link v. United States, supra, 352 F.2d at 212.

Before coming here, the issues presented in this case were considered by three courts, none of whom found prejudice in the failure to disclose the police report. We conclude that on this record such failure did not deprive Evans of due process of law.

Affirmed.

      . The identification testimony of the two Haffkes was the only evidence tying Evans to the crime. Apparently, fingerprints were taken from the milk carton immediately following the robbery but the results, if any, were not introduced at the trial and do not appear in the record.

      . This testimony is more fully set forth in State v. Evans, 187 Neb. 474, 192 N.W.2d 145 at 148 (Neb.1971).

      . Arthur Ilaffke testified that the big man was hare headed, without comment on hair style or color. Warren Ilaffke, who had been at the meat counter and had a less advantageous view, thought the robber was wearing a hat.

      . Wright, whose trial followed Evans’, was acquitted. Wright took the Fifth Amendment at Evans’ trial but his preliminary hearing testimony was read to the jury. Wright had testified that Evans was not the man with him in Ilaffke’s store on September 20, 1968.

      . State v. Evans, supra. On the suppression issue, the court held there was no suppression or concealment, noting defense counsel’s awareness of the photo display, and finding no significance in the failure of one of two identification witnesses to identify a photograph.

      . Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972) (“We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.”) ; United States v. Brumley, 466 F.2d 911 (10th Cir. 1972), cert. denied, 412 U.S. 929, 93 S.Ct. 2755, 37 L.Ed.2d 156 (1973); United States v. Evanchik, 413 F.2d 950 (2d Cir. 1969); United States v. Harris, 409 F.2d 77 (4th Cir.), cert. denied, 396 U.S. 965, 90 S.Ct. 443, 24 L.Ed.2d 430 (1969); United States v. Avella, 395 F.2d 762 (3d Cir.), cert. denied, 393 U.S. 837, 89 S.Ct. 113, 21 L.Ed.2d 108 (1968).

      . Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); United States v. Keogh, 391 F.2d 138 (2d Cir. 1968).

      . United States v. Deutsch, 475 F.2d 55 (5th Cir. 1973); United States v. Hauff, 473 F. 2d 1350 (7th Cir.), cert. denied, 412 U.S. 907, 93 S.Ct. 2299, 36 L.Ed. 2d 972 (1973); cf. United States v. Achtenberg, 459 F.2d 91 (8th Cir.), cert. denied, 409 U.S. 932, 93 S. Ct. 229, 34 L.Ed.2d 187 (1972).

      . Moore v. Illinois, supra; United States v. Kahn, 472 F.2d 272 (2d Cir.), cert. denied, 411 U.S. 982, 93 S.Ct. 2270, 36 L.Ed.2d 958 (1973); Peterson v. United States, 411 F.2d 1074 (8th Cir.), cert. denied, 396 U.S. 920, 90 S.Ct. 247, 24 L.Ed.2d 199 (1969); Link v. United States, 352 F.2d 207 (8th Cir. 1965).

      . Giglio v. United States, supra; United States v. Deutsch, supra; United States v. Hibler, supra; Loraine v. United States, 396 F.2d 335 (9th Cir.), cert. denied, 393 U.S. 933, 89 S.Ct. 292, 21 L.Ed.2d 270 (1968). Cf. Link v. United States, supra.

      . United States v. Hibler, supra; Clarke v. Burke, 440 F.2d 853 (7th Cir. 1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 718, 30 L.Ed.2d 731 (1972); Levin v. Katzenbach, 124 U.S.App.D.C. 158, 363 F.2d 287 (1966); Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842 (4th Cir. 1964); United States v. Consolidated Laundries Corp., 291 F.2d 563 (2d Cir. 1961); United States ex rel. Thompson v. Dye, 221 F.2d 763 (3d Cir.), cert. denied, 350 U.S. 875, 76 S.Ct. 120, 100 L.Ed. 773 (1955).

      . United States v. Hibler, supra; Link v. United States, supra; United States ex rel. Thompson v. Dye, supra. Cf. Scalf v. Bennett, 408 F.2d 325 (8th Cir.), cert. denied, 396 U.S. 887, 90 S.Ct. 175, 24 L.Ed.2d 161 (1969); Walker v. Bishop, 408 F.2d 1378 (8th Cir. 1969).

      . Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); United States v. Kahn, supra; United States v. Mele, 462 F.2d 918 (2d Cir. 1972); United States v. Keogh, supra; Link v. United States, supra.

      . Brady v. Maryland, supra, 373 U.S. at 87, 83 S.Ct. 1194.

      . United States v. Ruggiero, 472 F.2d 599 (2d Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2772, 37 L.Ed.2d 398 (1973). Cf. Williams v. Wolff, 473 F.2d 1049 (8th Cir. 1973).

      . No allegation has been made that the state’s attorney failed to disclose Gallagher’s report in bad faith and the record justifies none. Mr. Carey’s statement implies that full and open disclosure was the standard practice between the Public Defender’s office and the Douglas County Attorney’s office.

      . See Moore v. Illinois, supra.

      . The fact that photographs had been displayed to Ilaffke was disclosed to the defense at the preliminary hearing. The police officer conducting the photo display was not named and the existence of a report on the display was not revealed by the hearing. These were proper matters for inquiry by defense counsel, and nothing in the record supports the inference that the prosecution would have withheld the existence of the police report had defense counsel made appropriate inquiry. The prosecutor’s duty to correct false or mistaken testimony is well established. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 238 (1959). Failure of defense counsel to flush out such misinformation, if known to be such by the prosecutor, would not excuse the prosecutor’s nondisclosure. United States v. Poole, 379 F.2d 645 (7th Cir. 1967). On the record of this case, neither party should be penalized for simply failing to disclose on the one hand or simply failing to request disclosure on the other without first assessing the materiality of the undisclosed evidence. See Barbee v. Warden, Maryland Penitentiary, supra, 331 F.2d at 345.

      . The standard of materiality has varied greatly. Where the nondisclosed evidence is patently immaterial, it has been held outside the reach of Brady, as in Peterson v. United States, 411 F.2d 1074 (8th Cir.), cert. denied, 396 U.S. 920, 90 S.Ct. 247, 24 L.Ed.2d 199 (1969), or else the harmless error standard has been applied. United States v. Davila-Nater, 474 F.2d 270 (5th Cir. 1973). Levin v. Clark, 133 U.S.App.D.C. 6, 408 F.2d 1209, 1212 (1967) stated the test in terms of “whether the evidence might have led the jury to entertain a reasonable doubt” about defendant’s guilt. Perhaps the most realistic standard is simply whether the nondisclosure prejudiced the defense. Simos v. Gray, 356 F.Supp. 265 (E.D.Wis.1973); cf. United States v. Brumley, 466 F.2d 911 (10th Cir. 1972), cert. denied, 412 U.S. 929, 93 S.Ct. 2755, 37 L.Ed.2d 156 (1973); Kyle v. United States, 297 F.2d 507 (2d Cir. 1961), cert. denied, 377 U.S. 909, 84 S.Ct. 1170, 12 L.Ed.2d 179 (1964). See Comment, 40 U.Chi.L. Rev. 112 (1972).


source: Caselaw Access Project

author: LEWIS R. MORGAN, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Steven Robert SPEED and Henry Ray Rainer, Defendants-Appellants.
    No. 73-2035.
    United States Court of Appeals, Fifth Circuit.
    Dec. 28, 1973.
    Fisher Alsup, Corpus Christi, Tex. (court-appointed), for Rainer.
    Ronald D. Karchmer, Corpus Christi, Tex. (court-appointed), for Speed.
    Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before RIVES, WISDOM and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

Appellants Speed and Rainer were convicted in a jury trial in the United States District Court for the Southern District of Texas of possession of marihuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). On appeal from these convictions, appellants argue that nine errors were made during their joint trial. Finding that the search which produced the marihuana introduced into evidence at the trial violated appellants’ rights under the Fourth Amendment, we need not deal with any of the other assertions of error.

Early in the morning of June 18, 1972, appellants’ ear was stopped by the Border Patrol at a temporary checkpoint south of Falfurrias, Texas. The checkpoint was located on U. S. Highway 281, approximately 65 to 75 miles north of the Mexican border. The location was frequently used by the Border Patrol because in the past, it had been particularly effective in revealing illegal aliens and contraband. Highway 281 is a north-south artery connecting the border with the interior of the state. The area between the checkpoint and the border is sparsely populated, but between the checkpoint and the border are several small towns — among them, Rachal, Linn, Solino, Faysville and Edinburg. Thus, traffic traveling from these towns toward the interior of the state would pass through the checkpoint.

After the Border Patrol agent had stopped appellants’ car, he inquired if they were American citizens. Upon finding that they were, he asked them to open the trunk. They told him they did not have the key. The agent then had the back seat of the car removed so he could search the trunk. The search revealed approximately 40 pounds of marihuana, which was introduced as evidence at appellants’ trial. The search was supported by neither probable cause nor a warrant, but the district court denied appellants’ motion to suppress the marihuana on the grounds that the search was justified by 8 U.S.C. § 1357 and was a border search.

The so-called “border search” exception to the warrant and probable cause requirements of the Fourth Amendment has received considerable attention in this circuit, especially since Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). See, e. g., United States v. Lonabaugh, (5 Cir. 1973) [December 17, 1973, No. 73-2241]; United States v. Steinkoenig, 487 F.2d 225 (5 Cir. 1973); United States v. McKim, 487 F.2d 305 (5 Cir. 1973); United States v. Bean, 484 F.2d 1275 (5 Cir. 1973); United States v. Byrd, 483 F.2d 1196 (5 Cir. 1973).

The idea that “border searches” are not restricted by the warrant and probable cause requirements of the Fourth Amendment was recognized by the Supreme Court long before Almeida-Sanchez. Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543 (1925). But the concept was never given any specific content by the Court, and different circuits had given wide-ranging interpretations to the doctrine. E. g., United States v. McDaniel, 463 F.2d 129 (5 Cir. 1972), United States v. Hill, 430 F.2d 129 (5 Cir. 1970), United States v. Garcia, 415 F.2d 1141 (9 Cir. 1969), United States v. Glaziou, 402 F.2d 8 (2 Cir. 1968), United States v. McGlone, 394 F.2d 75 (4 Cir. 1968). See Anno., 6 A.L.R.Fed. 617 and cases cited therein.

Almeida-Sanchez, if it has not answered all the questions about this area of the law, has at least given new focus to the inquiries. We must now ask if a search occurred either at the border or at the functional equivalent thereof. 93 S.Ct. 2535, 37 L.Ed.2d at 602. If not, then it is not a border search.

With respect to the question of what constitutes a search at the functional equivalent of the border, this court recently observed,

Proximity to the border is not the only standard for determining whether a search is the functional equivalent of a search at the border. There must be some substantial connection with an actual or suspected border crossing by the person or thing to be searched. In other words, the searching officers must know or have a reasonable suspicion that the very individual or thing to be searched has itself just crossed the border. Judicial notice or even proof of many illegal acts in the area in which the search takes place is not enough. United States v. Lonabaugh, supra.

In Almeida-Sanchez, a roving border patrol searched a car on an east-west highway about 25 miles from the border. In this case, we have a temporary checkpoint located on a north-south highway between 65 and 75 miles from the border. Neither search was at the border or its functional equivalent.

The distinction between a north-south road and an east-west road is relevant to the inquiry of what constitutes a border search, but it is not determinative. Here, there was too great an interference with internal, domestic highway traffic to justify the search as a border search in spite of the fact that the road eventually crossed the border. We are not willing to subject every resident of the area between the Falfurrias checkpoint and the border to virtually unrestricted searches whenever they use their automobiles.

The distinction between a checkpoint and a roving patrol is not important. There appears to be little difference between the interference with domestic traffic caused by patrols and that caused by temporary checkpoints which may be moved about at the whim of the agents who operate them.

Thus, what occurred in this case is essentially identical to the searches in Al-meida-Sanchez and Byrd. The only connection to the border which could justify any of the searches was that they fell within the ambit of 8 U.S.C. § 1357(a) and 8 C.F.R. § 287.1, and that similar searches in the area had produced evidence of illegal activity. Neither a Congressional statute nor praise for the results of a certain investigative technique can justify an otherwise illegal search and seizure. The convictions of both appellants are Reversed.

      . 8 U.S.C. § 1357 states, in part:
      (a) Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant—
      (3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway ear, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States;
      # s{s * H*


author: PER CURIAM:

text:
    Lela SPARKS, as Administratrix of the Estate of Stella K. Sparks, Deceased, Plaintiff-Appellee, v. RACK SERVICE COMPANY, INC., Defendant, Rack Service Merchandisers, Inc., Defendant-Appellant.
    No. 73-3197
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 13, 1974.
    Rehearing Denied March 25,1974.

      William B. Moore, Jr., Montgomery, Ala., for defendant-appellant.
    Charles H. Volz, Jr., Montgomery, Ala., M. Clay Alspaugh, Roscoe B. Hogan, Birmingham, Ala., for plaintiff-ap-pellee.
    Before BELL, GODBOLD and GEE, Circuit Judges.

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

   PER CURIAM:

This is an appeal from a judgment for plaintiff-appellee entered on a jury verdict in a wrongful death diversity action. Appellant’s principal defense was that a settlement agreement between its insurer and the plaintiff barred further recovery. Plaintiff’s theory was that the settlement had been procured by fraud and misrepresentation, and thus should be set aside.

The evidence as to whether insurer’s claims adjuster misrepresented Alabama law was conflicting, but was sufficient to have been submitted to the jury. See Boeing Co. v. Shipman, 5 Cir., 1969, 411 F.2d 365, 374. Thus we need inquire only whether the case is governed by Georgia Home Ins. Co. v. Warten, 1897, 113 Ala. 479, 22 So. 288, which held that as a general rule a contract will not be vitiated by misrepresentations of matters of law, at least when made to an adversary party. In a subsequent case the Alabama Court of Appeals has recognized that this rule will not protect a contract where the misrepresenter is an attorney,

, “or some person whose work infers special knowledge inviting confidence. Such person is presumed to possess superior knowledge, and where the other party, a layman, is unlearned in such field, the layman is justified in relying upon the representations of the specialist.”

Bank of Loretto v. Bobo, 1953, 37 Ala. App. 139, 67 So.2d 77, 85-86, writ to Ala.Sup.Ct. den., 259 Ala. 374, 67 So.2d 90.

We think this case is squarely within Loretto. Here the misrepresenter was a claims adjuster dealing with a woman of little education and no legal or claims experience. The alleged misrepresentations concerned the maximum recovery available in Alabama for wrongful death, and the effect of a higher settle^ ment on amounts available to cover other claims arising from the same accident. These being matters within the claims adjuster’s specialty, the jury could properly find that, appellee’s reliance was justified.

We find no merit on the other issues raised by appellant.

Affirmed.


author: McENTEE, Circuit Judge.

text:
    Myron L. KENLER and Regina O. Kenler, Plaintiffs, Appellants, v. CANAL NATIONAL BANK, Defendant, Appellee.
    No. 73-1100.
    United States Court of Appeals, First Circuit.
    Oct. 18, 1973.

      John Alterman, Miami, Fla., with whom Daniel G. Lilley, Portland, Me., was on brief, for plaintiffs, appellants.
    Jeremiah D. Newbury, Portland, Me., with whom Charles W. Allen, Albert G. Ayre and Pierce, Atwood, Scribner, Allen & McKusick, Portland, Me., were on brief, for defendant, appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

In this diversity action, plaintiffs (Dr. and Mrs. Kenler) appeal from a district court judgment which granted defendant’s (Canal National Bank) motion for summary judgment. The Ken-lers are presently the owners of 7,087 shares of “legended” investment stock of the now bankrupt Maine Insurance Company (“the Company”). In prosecuting this suit, they seek to hold the Bank, as transfer agent for the Company liable in damages for its alleged wrongful refusal to remove the restrictive legends on their shares, which refusal resulted in the inability of the plaintiffs to sell said shares prior to the time the Company became bankrupt. The relevant facts can be summarized as follows.

In 1964 and 1965 Dr. Kenler acquired certain investment shares in the Company pursuant to an unregistered “private offering.” At the time of issuance, the stock certificates bore a restrictive legend, commonly placed upon shares acquired in such a manner, which provided :

The shares represented by this certificate have not been registered under the Securities Act of 1933. The shares have been acquired for investment and may not be reoffered, sold, transferred, pledged or hypothecated in the absence of an effective Registration Statement for the shares under the Securities Act of 1933 or a prior opinion of counsel, satisfactory to the Company, that registration is not required under that Act.

During the latter part of 1966 Dr. Ken-ler became seriously ill and eventually his illness compelled him to give up medical practice and retire to Florida with his wife. At that time, Kenler transferred most of his stock in the Company to his wife, retaining only a small percentage of the original shares. In the fall of 1968 Mrs. Kenler sought to sell her stock in order to supplement her husband's depleted income, and to assist in meeting his increasing medical expenses. On October 14, 1968, Mrs. Ken-ler, in a letter to the Securities and Exchange Commission, explained her situation and requested a “No Action” letter on the proposed sale of her shares. Two months later, Special Counsel for the SEC Division of Corporation Finance replied, and, in noting that Dr. Kenler was on the board of directors of the Company, indicated that any sales of the restricted stock had to conform with the strictures imposed by then existing Rule 154. ******Shortly thereafter, on December 12, 1968, plaintiffs’ broker transmitted Mrs. Kenler’s shares and the SEC letter to the Bank, and requested that new certificates be issued in small lots without restrictive legends. Seeking guidance, the Bank promptly forwarded the shares and the SEC letter to the Company, and requested advice on what posture to adopt. Although there is no evidence in the record to indicate that the Company ever replied directly to the Bank, it is undisputed that on January 14, 1969, the president of the Company wrote the Kenlers, returned their shares and at that time informed them that, after consultations with counsel, “we cannot instruct the transfer agent to remove the restrictive legend while you are still a director of the company.” The Kenlers apparently accepted this response, and pursued the matter no further, although Dr. Kenler did resign as a director the following May.

The matter lay dormant for over a year and a half. Then, on July 30, 1970, Dr. and Mrs. Kenler again wrote to the SEC, explained the circumstances (including the fact that Kenler had resigned as a director) and requested a “No Action” letter regarding the proposed sale of all their 7,087 shares. This time their efforts were successful, and on August 25, 1970, the Assistant Chief Counsel of the SEC Division of Corporation Finance issued a “No Action” letter.

At this point, the Kenlers maintain that they immediately forwarded their shares and the “No Action” letter to the defendant Bank, and requested the issuance of new certificates without the restrictive legends. Although the Bank has denied ever receiving this request, they have stipulated, as indeed they must, that for the purposes of their motion for summary judgment, the receipt of this request should be accepted as a matter of fact. Receiving no response from the Bank, Dr. Kenler, on November 4, 1970, again wrote to the defendant, inquiring as to whether it was the transfer agent for the Company. In this correspondence, he indicated that he held a “No Action” letter and again requested removal of the restrictive legends from the shares. Approximately a week later, the Bank informed Dr. Ken-ler that his November 4, letter had been transmitted to the Company. The Bank also stated that it had no record of any previous letter. On November 14, 1970, Kenler wrote to the Bank once more, demanding to know if it was the transfer agent. In a letter dated November' 19, 1970, the Bank acknowledged that it was the Company’s transfer agent, and reiterated that it had forwarded Kenler’s November 4 correspondence to the Company for action thereon.

No further correspondence between the plaintiffs and the defendant appears in the record. At no time did the Bank remove the legends from the Kenler stock, and, consequently, that stock was never sold. On December 31, 1970, the Maine Insurance Commissioner began receivership proceedings against the Company, and two weeks later the Company was formally adjudged insolvent, with the result that plaintiffs’ shares became valueless.

Plaintiffs contend that the failure of the Bank to remove the legends on their stock and to issue new unrestricted certificates as requested, constituted a breach of duty imposed on the Bank, as transfer agent, by the Maine Uniform Commercial Code. 11 Maine Revised Statutes Annotated §§ 8-401, 8-406. Defendant maintains, however, that the UCC has no application to the facts of this case, and that at common law, it is undisputed that a transfer agent cannot be held liable to a stockholder in damages for mere “nonfeasance,” (such as failure to act to remove the legends). See Hulse v. Consolidated Quicksilver Min. Corp., 65 Idaho 768, 154 P.2d 149 (1944); Palmer v. O’Bannori, 253 Mass. 8, 149 N.E. 112 (1925); 12 Fletcher Cyc. Corp. § 5525 (Perm. ed. 1971).

The threshold problem of UCC applicability is governed by 11 M.R.S.A. § 8-401(1), which states in relevant part: “Where a security in registered form is presented to the issuer with a request to register transfer, the issuer is under a duty to register the transfer as requested, if [conditions omitted].” (Emphasis added.) By operation of 11 M.R.S.A. § 8-406(1), a coextensive duty is imposed upon the transfer agent, and wrongful refusal by the transfer agent to register a requested transfer makes the agent liable, to the damaged shareholder. 11 M.R.S.A. § 8-401(2).

A difficult state law question is presented by plaintiffs’ contention that their repeated requests for removal of the restrictive legends on their investment shares (which would be admittedly, the obvious first step in, and a necessary incident to the contemplated transfer of such stock) should be considered as a “request to register transfer” within the meaning of § 8-401(1). This is a question of first impression, not only under the law of Maine, but also under the law of every jurisdiction that has adopted the Uniform Commercial Code. It is, however, a question that we need not pass upon here since, in our view, even if this threshold issue of UCC applicability were resolved in plaintiffs’ favor, recovery under that statute would nonetheless be precluded. Consequently, our discussion will proceed on the ar-guendo assumption that where removal of restrictive legends on investment stock is mandatory in order to effect transfer of the shares, and where it is clear to the transfer agent that the requesting shareholder intends to immediately dispose of his shares, a request for removal of the legends and the issuance of unrestricted certificates is substantially equivalent to a “request to register transfer” of those shares.

Before the. transfer agent has any obligation to register transfer under 11 M.R.S.A. § 8-401(1), certain specific statutory conditions must be met. 11 M.R.S.A. § 8-401(1)(a)-(e). The only condition relevant to our inquiry is 11 M.R.S.A. § 8-401(1) (e), which requires that the requested transfer be “in fact rightful or ... to a bona fide purchaser.” Plaintiffs do not argue, nor can they, that their requests for legend removal, even if considered as requests for transfer, could be said to involve a transfer to a bona fide purchaser. Rather, they maintain that since their requests for transfer were “rightful,” the defendant Bank breached its duty by refusing to comply with these requests. We do not agree. Although Maine law is silent on the point, we believe that in the absence of tendering the necessary “opinion of counsel,” as expressly required by the restrictive legend, the requested transfers may not be said to be rightful.

Recognizing that in order to coipply with 11 M.R.S.A. § 8-401(1) (e) that the requisite opinion of counsel must be present, plaintiffs’ attempt to construct the argument that a tendered SEC “No Action” letter should be construed to satisfy this requirement. With respect to the 1968 request, this contention provides no solace to plaintiffs, since the SEC response to their inquiry at that time may not be said to constitute such a letter. At best, the SEC merely informed Mrs. Kenler that in order to legally effectuate sale of her stock, she must comply with Rule 154. The SEC expressed absolutely no opinion as to whether Mrs. Kenler could in fact comply with the qualitative and quantitative limitations imposed by that Rule. And while it is true that in 1970, the SEC did give the Kenlers a true “No Action” letter on their proposed stock sale, we hold that such a “No Action” letter can not be said to constitute an opinion of counsel as required by the restrictive legend.

The obvious purpose behind the restrictive legends’ requirement of an opinion of counsel is to provide maximum protection to the corporation from potential liability for unlawful sales of securities in violation of § 5 of the Securities Act, 15 U.S.C. § 77e (1970). The “No Action” letter, which is simply a non-binding recommendation by an SEC staff counsel, 6 Loss, Securities Regulation 4023 (1969), does not adequately provide the corporation with the protective safeguards contemplated by the “opinion of counsel” provision. In the first place, where, as here, no outside counsel has been retained, the “No Action” letter will be rendered strictly on the basis of a set of facts represented by the stockholder as accurate and complete. The SEC does not conduct an independent investigation of all the circumstances surrounding the stockholder’s attempt to dispose of his securities without registration, nor could it be expected to do so. Since the stockholder is rarely an attorney steeped in the learning and experience of the corporate securities bar, the validity of the “No Action” letter is entirely dependent upon the extent to which his representations to the SEC fully reflect the salient and legally relevant details of his particular situation. In other words, the degree of protection afforded to the corporation, should it be forced to accept this “No Action” letter as satisfying the “opinion of counsel” provision, can be defined entirely in terms of a layman’s vastly limited expertise in the complex field of securities law. We feel that such questionable protection certainly does not provide the safeguards expected by the corporation when it imposed the “opinion of counsel” provision in the restrictive legend. On the other hand, the necessary protections are fully provided where the opinion is rendered by competent private counsel. Because experienced legal counsel can be expected to be fully aware of the requirements that must be met in order to safely transfer restricted stock without registration, and, accordingly, to appropriately investigate the particular circumstances of his stockholder-client, the corporation is in a much better position to rely on the accuracy and correctness of an opinion rendered by such counsel.

Moreover, there is a second important distinction between the opinion of competent counsel, and an SEC “No Action” letter. Where counsel has negligently erred in rendering his opinion, with the result that transfer of the stock causes the corporation to be subjected to civil liability. for violation of the Securities Act, a remedy would presumably exist in common law tort in favor of the corporation against such private counsel. However, under the doctrine of sovereign immunity, a similar common law action clearly would not be available against the SEC for negligence in the preparation of a “No Action” letter. Thus, a potentially important safeguard is guaranteed to the corporation if the “opinion of counsel” provision in the restrictive legend were read to exclude the SEC “No Action” letter.

The cases cited by plaintiffs for the proposition that a “No Action” letter does constitute the requisite opinion of counsel are entirely inapposite and were adequately distinguished in the decision of the district court. We thus conclude that a “No Action” letter does not comport with the full protections intended to be accorded the corporation by the provision in the restrictive legend for an “opinion of counsel.” Therefore, since no appropriate opinion of counsel was, in fact, tendered by the Kenlers, their requests for transfer were not “rightful,” and consequently the Bank had no duty under the UCC to remove the legends and issue new unrestricted certificates.

Affirmed.

      . The SEC response was not a “No Action” letter as had been requested by Mrs. Kenler. Indeed, the letter expressed no opinion whatsoever regarding the question of whether the Kenlers could actually comply with the requirements of Rule 154. The correspondence stated:
      “This refers to your letter dated October 14, 1968, in connection with a proposed sale of 5,250 shares of Maine Insurance Company common stock of which 5,000 were received from your husband in November 1966 and 250 were received as a stock dividend on these shares. It appears that your husband purchased these shares in 1964 for investment, and that in December 1966 he became totally disabled and was obliged to retire from the practice of medicine and to move to Florida. “In view of your husband’s position on the company’s board of directors it appears that he may be part of a controlling group of Maine Insurance Company. Consequently, any sales of this company’s • shares by you and your husband should be limited to the provisions of Rule 154 under the Securities Act of 1933. In addition sales by you and your husband should be considered in the aggregate for the purpose of determining the maximum number of shares which may be sold in any six month period. We are enclosing a copy of Securities Act Release No. 4818 which discusses the broker’s exemption provided by Rule 154.”
      Rule 154 has subsequently been replaced by the new Rule 144. For a detailed discussion of Rule 144, see Securities Act Release No. 5306 (Sept. 26, 1972).

      . On the basis of specific facts presented to the Commission by the Kenlers, the Assistant Chief Counsel replied that “this Division will not recommend any action to the Commission if you sell 7,087 shares of the Company’s stock without compliance with the registration provisions of the Securities Act of 1933.”

      . The theory behind this common law rule is that since the transfer agent serves only as agent for the corporation, it owes no direct or affirmative obligation to the individual stockholder to register transfer of his shares. See, e. g., Nicholson v. Morgan, 119 Misc. 309, 196 N.Y.S. 147 (N.Y.Mun.Ct. 1922). For wrongful refusal to transfer shares, the transfer agent would be liable in damages solely to the corporation, which in turn would be liable to its injured shareholders. See, e. g., Fowler v. National City Bank, 49 Ga.App. 435, 176 S.E. 113 (Ct.App.1934); 12 Fletcher Cyc. Corp. §§ 5523, 5525 (Perm. ed. 1971). In situations to which it would apply, the UCC is clear in its intent to abrogate the common law immunity of transfer agents in suits brought by wrongfully injured shareholders. See 11 M. R.S.A. § 8-406, U.C.C. Comment 1.

      . 11 M.R.S.A. § 8-406(1) provides:
      “Where a person acts as authenticating trustee, transfer agent, registrar or other agent for an issuer in the registration of transfers of its securities or in the issue of new securities or in the cancellation of surrendered securities,
      * * * :¡! *
      (b) He has with regard to the particular functions he performs the same obligation to the holder or owner of the security and has the same rights and privileges as the issuer has in regard to those functions.”

      . The correspondence between plaintiffs, their broker and the Bank make it clear that with regard to both the 1968 and 1970 requests for legend removal, the Bank was well aware that plaintiffs desired to promptly attempt to transfer their shares to various prospective purchasers, who, of course, could not be procured until after the legends had been removed.

      . A “bona fide purchaser” is defined as “a purchaser for value in good faith and without notice of any adverse claim who takes delivery of a security in bearer form or of one in registered form issued to him or endorsed to him or in blank.” 11 M.R.S.A. § 8-302 (emphasis added). Even under our arguendo assumption that requests for legend removal constitute § 8-401(1) requests for transfer, it is clear that the Kenlers, who would actually receive the unlegended certificates, can in no way be said to be purchasers for value.

      . In order to accomplish a transfer, the restrictive legend required the existence of either a valid Registration Statement covering the shares, or an opinion of counsel that registration was not required. Since it is app'arent that no valid Registration Statement was in effect at the time of each requested transfer, it was incumbent upon plaintiffs to supply an appropriate opinion of counsel in order to make their requests for transfer “rightful.”

      . See footnote 1, supra.

      . The district court correctly concluded that: “The three cases upon which plaintiffs rely are plainly distinguishable. In Kanton v. United States Plastics, Inc., 248 F.Supp. 353 (D.N.J.1965), the plaintiff supplied a favorable opinion of counsel and a “No Action” letter from the SEC. See Petrillo v. Seven Arts Productions, Ltd., [CCH Fed.Sec.L.Rep. par. 91,921 (Sup.Ct.N.Y. Apr. 7, 1967)] at 96,172. As in Kanton, the court in Riskin v. National Computer Analysts, Inc., 62 Misc.2d 605, 308 N.Y.S.2d 985 (Sup.Ct.1970), modified, 37 A.D.2d 952, 326 N.Y.S.2d 419 (App.Div.1971), nowhere held that a “no action” letter constituted the “opinion of counsel to the company” specified by the restrictive legend on the plaintiff’s share certificates. Finally, Gasarch v. Ormand Industries, Inc., 346 F.Supp. 550 (S.D.N. Y.1972) did not present the issue of whether or not a “no action” letter constitutes the required opinion of counsel within the meaning of a restrictive legend. . . . To the extent that Gasarch may be read to indicate, in dictum, that under New York law, in the absence of bad faith, a “no action” letter may require a transfer agent to effect a transfer despite a restrictive legend, the New York cases cited by the court do not support such a view. [Citation omitted]” (Emphasis in original).


author: J. JOSEPH SMITH, Circuit Judge:

text:
    Joseph E. BLOUIN, Jr., and Fred Griese, Plaintiffs-Appellants, v. Hon. Nanette DEMBITZ et al., Defendants-Appellees.
    No. 104, Docket 73-1686.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 16, 1973.
    Decided Dec. 13, 1973.

      Edith Blumberg, New York City (De-yan Ranko Brashich, Brashich & Finley, New York City, of counsel), for appellants.
    Robert S. Hammer, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for appellees.
    Before KAUFMAN, Chief Judge, and SMITH and OAKES, Circuit Judges.
   J. JOSEPH SMITH, Circuit Judge:

This is an appeal from an order entered in the United States District Court for the Southern District of New York, Charles L. Brieant, Judge, dismissing appellants’ § 1983 action against the judges and, staff of the New York Family Court, who have admittedly threatened appellants with arrest should they fail to appear at support proceedings instituted by their former wives. Judge Brieant held that the basis of appellants’ action — that the state judges had deviated from New York law in that they had notified appellants of the support proceedings solely by mail — involved questions, properly left to the state courts. He further found that appellants’ action was absolutely barred by the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the exhaustion requirement applied to habeas corpus petitions under 28 U.S.C. § 2254, and the common law of judicial immunity. Since we agree only that the facts here present a prime case for federal abstention, we affirm solely on that ground.

I.

Those facts are simple and undisputed. Both appellants are divorced men currently being sued for support by their former wives. Following the filing of the support petitions, the Family Court directed its clerk to mail summonses to the two men pursuant to § 427 of the New York Family Court Act. Appellants concede that they received, but chose to ignore, these notices. Upon their failure to appear, arrest warrants were issued — as had been threatened in the first summons — but were left unexecuted until the reluctant defendants were given a second notice and opportunity to appear. ******At this time, appellants instituted this § 1983 action against the Family Court officials, praying for $20,000 in damages for mental anguish already occasioned by the threats of arrest and injunctive relief against further such harassment.

Appellants concede at the outset that the Family Court could secure in person-am jurisdiction over them at virtually any time by personally serving them at their respective homes or offices. Appellants also apparently have no objection to the fact that incarceration may be the penalty for defying such a summons. Their only objection is that the mailed service of process, which again they admit receiving, was not authorized under § 427 of the Family Court Act:

§ 427. Service of summons

(a) Service of a summons and petition shall be made by delivery of a true copy thereof to the person summoned at least three days before the time stated therein for appearance.

(b) If after reasonable effort, personal service is not made, the court may at any stage in the proceedings make an order providing for substituted service in the manner provided for substituted service in civil process in courts of record.

(e) In a proper ease, service of a summons and petition under this section may be effected by mail.

For their part, the officials of the Family Court admit that what was apparently intended to be the exception of mailed service in § 427(c) has swallowed the x’ule of personal service in § 427(a): They state that the court routinely mails summonses in every case due to the fact that it has neither the staff nor the budget to provide personal service. Judge Brieant found that this rather expansive interpretation of § 427(c) had never been challenged in the state courts; he therefore directed appellants to pursue their essentially statutory objections in those tribunals.

II.

Before we consider the primary question of federal abstention, we must briefly comment upon what appear to be alternative l’ationales for the dismissal below. First, Judge Brieant and both parties assumed that the teaching of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) that the federal courts should be exceedingly reluctant to enjoin state criminal proceedings applies to the support actions at issue here. It must be remembered, however, that the Supreme Court has thus far refused to extend Younger to cases involving state civil proceedings. See, Gibson v. Berryhill, 411 U.S. 564, 573-576, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973); California v. LaRue, 409 U.S. 109, 124 n. 2, 93 S.Ct. 390, 34 L. Ed.2d 342 (1972) (Marshall, J., dissenting); Mitchum v. Foster, 407 U.S. 225, 244, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) (Burger, C. J., concurring); Younger v. Harris, 401 U.S. 37, 55, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (Stewart, J., concurring).

We are, therefore, unwilling to endorse the district court’s view — based solely on rather dated dicta (James v. James, 178 Misc. 1041, 37 N.Y.S.2d 89, 90 (Family Ct., Bronx Co., 1941)) — that a support action is so “quasi-criminal” as to bring it within the strict ambit of Younger. This is not to say that we think the general doctrine of federal-state comity is completely inapplicable here. See, Cousins v. Wigoda, 409 U.S. 1201, 1205-1206, 92 S.Ct. 2610, 34 L.Ed. 2d 15 (1972) (Rehnquist, J., Opinion in Chambers). But we do believe that the particularly stringent formulation of that doctrine in Younger should be limited, at least until the Court instructs otherwise, to cases involving traditionally criminal proceedings.

Secondly, we must disagree with the district court’s suggestion that the exhaustion requirement for federal habeas corpus, 28 U.S.C. § 2254, is applicable here where the federal plaintiffs were merely threatened with arrest. We are, of course, aware that the Supreme Court has recently held that § 1983 cannot be used to circumvent the exhaustion requirement where a state prisoner seeks his immediate release. Prieser v. Rodriguez, 411 U.S. 475, 489-490 (1973). However, we do not think that the Court further intended to require such exhaustion where the federal plaintiffs filed their action long before the state brought them under § 2254 by putting them in its custody.

Finally, we must disagree with the district court’s apparent belief that either the anti-injunction provisions of 28 U.S.C. § 2283 or the common law of judicial immunity bars injunctive relief in this case. The Supreme Court has, of course, held that a § 1983 action is within the “expressly authorized by Act of Congress” exception to § 2283 and that injunctions against state judicial proceedings may, therefore, be granted in an appropriate case. Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). And while it is true that the common law of judicial immunir ty protects a judge from monetary damages under § 1983, Pierson v. Ray, 386 U.S. 547, 553-555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), the Seventh Circuit, in a considered opinion, has recently held that neither the legislative history of § 1983 nor the teaching of Pierson v. Ray precludes injunctive relief against judges who have truly abused their offices in denying citizens their basic civil rights. Littleton v. Berbling, 468 F.2d 389, 395-408 (7th Cir. 1972), cert. granted sub nom. O’Shea v. Littleton, 411 U.S. 915, 93 S.Ct. 1544, 36 L.Ed.2d 306 (1973). Since the Supreme Court will review Littleton this term, we feel it would be unwise to make the unnecessary decision whether the judges here are absolutely immune from even injunctive relief.

III.

Assuming arguendo that appellants can maintain this action, we nevertheless believe the district court acted quite properly in abstaining from a question of judicial administration which is undoubtedly best left to the state courts. First, it must be remembered that the New York courts have not yet ruled on the sufficiency of mailed service in the circumstances of this case. It would, therefore, be improper for the federal courts to apply a constitutional standard to such an uninterpreted statute. Askew v. Hargrave, 401 U.S. 476, 477-478, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971); Reetz v. Bozanich, 397 U.S. 82, 86-87, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); Reid v. Board of Education of City of New York, 453 F.2d 238, 241-244 (2d Cir. 1971).

Moreover, we have no reason to believe that the New York courts will not act to reconcile the statute and practices at issue with the Federal Constitution and state legislative intent. Indeed, one of the cases stressed by appellants, Rodoe v. Noneus, 23 A.D.2d 212, 213, 260 N.Y.S.2d 977, 978 (4th Dept. 1965) — though strictly inapposite because it involved a statute which required an initial attempt at personal service — clearly demonstrates that the state courts will protect domestic relations defendants with all the safeguards of the appropriate service statute. Here the defending husbands — who have received ample actual, if not legal, notice —need only appear specially to contest the alleged insufficiency of exclusively mailed service. See, N.Y.Civ.Prac.Law & Rules § 3211(a).

In the event the New York courts declare that mailed service is always appropriate in Family Court actions — thus at last forcing the federal courts to assess its constitutionality — the correct standard to be applied would be “whether or not the form of substituted service . is reasonably calculated to give actual notice of the proceedings and an opportunity to be heard.” Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940). See also, Mullane v. Central Hanover Trust Co., 339 U.S. 306, 315, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Schroeder v. City of New York, 371 U.S. 208, 211, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962); Manchester Modes, Inc. v. Lilli Ann Corp., 306 F.Supp. 622, 626 (S.D.N.Y.1969); Milosavljevic v. Brooks, 55 F.R.D. 543, 548 (N.D.Ind.1972).

We need not, at this point, decide whether properly addressed first-class mail is so “reasonably calculated” to afford such notice. It will be time enough to reach that constitutional question when it is suitably presented for our consideration. We therefore affirm the dismissal below without prejudice to the assertion of appellants’ claims in the state courts or the renewal of those claims in the federal courts after an adverse state determination.

Affirmed.

      . We are advised that a few days after this appeal was argued, appellant Griese was finally arrested. . While we are at a loss to explain this turnabout by the state — which had previously stressed its good faith in not executing the long-outstanding warrants— appellant’s arrest in no way changes our view that though this action is maintainable, no federal intervention is mandated. On this latter point, we note that Mr. Griese was promptly released after his counsel appeared specially without waiving his jurisdictional objections.

      . Appellant Griese is a resident of New York; appellant Blouin, while a resident of New Jersey, maintains a business office in New York.

      . Affidavit of Mr. James P. McGrath, Clerk of the Family Court, New York County.

      . See also, Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781 (1971); Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L. Ed.2d 792 (1971).

      . As the district court noted, the state’s characterization of the proceedings will at least partially determine Younger’s applicability. See, Gibson v. Berryhill, 411 U.S. 564, 576, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973); Younger v. Harris, 401 U.S. 37, 55 n. 2, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (Stewart, J., concurring). Here it is clear that contemporary New York law views the support proceedings at issue as “civil.” N. Y.Dom.Rel.Law § 30; Rivera v. Rivera, 5 Misc.2d 362, 160 N.Y.S.2d 171, 174 (Children’s Ct., Westchester Co., 1957); Anonymous v. Anonymous, 38 Misc.2d 961, 239 N. Y.S.2d 315, 317 (Family Ct., Dutchess Co., 1963).

      . We note that the Court may have already narrowed Prieser v. Rodriquez in _ its subsequent summary affirmance of Miller v. Gomez, 412 U.S. 914 (1973). In that case, a three-judge court in this circuit had held that indicted, but unconvicted, felons need not exhaust state remedies in a § 1983 action challenging their incarceration in hospitals for the criminally insane. 341 F.Supp. 323, 328-329 (S.D.N.Y.1972). In view of the detailed dissent by Judge Moore on the exhaustion issue (id. at 333-336), we cannot believe that the Court overlooked this jurisdictional question in its summary affirmance. Giving such an affirmance the deference it is due, Doe v. Hodgson, 478 F.2d 537, 539 (2d Cir. 1973), we think the obvious way to reconcile Prieser and Gomez is to say that while the Court will require exhaustion in cases in which state prisoners seek their immediate release, it will not do so in the case of those incarcerated, or as here merely threatened with imprisonment, without benefit of the normal criminal process.

      . N.Y. Family Court Act § 525.

      . While we thus do not reach appellants’ premature constitutional claim, we should note that United States v. Wiseman, 445 F.2d 792 (2d Cir.), cert. denied, 404 U.S. 967, 92 S. Ct. 346, 30 L.Ed.2d 287 (1971) — a case cited by appellants — is not only inapposite, but also appears to undercut their position. In Wisemam this court took a justifiably harsh stance towards two professional process servers who had deprived numerous civil defendants of their rights by failing to deliver personal summonses. Significantly, the process servers were convicted in part on the basis of a survey mailed to the aggrieved individuals. See, Tuerkheimer, Service of Process in New York City: A Proposed End to Unregulated Criminality, 72 Colum.L.R. 847, 848-50 (1972).
      Similarly, we would merely note that those who have studied the vagaries of personal service in New York have urged that some type of mailed service be substituted. See, e. g., Abuse of Process: Sewer Service, 3 Colum.J.Law & Soc.Prob. 17, 25-27 (1967); Tuerkheimer, supra at 859-60.