author: LIVELY, Circuit Judge.

text:
    Margaret Mae CANTRELL, et al., Plaintiffs-Appellees, v. FOREST CITY PUBLISHING CO., a corporation, et al., Defendants-Appellants.
    No. 73-1081.
    United States Court of Appeals, Sixth Circuit.
    Argued June 12, 1973.
    Decided Sept. 10, 1973.

      Smith Warder, Cleveland, Ohio, for defendants-appellants; Arter & Hadden, Cleveland, Ohio, Sabin, Bermant & Blau, New York City, of counsel.
    Harry Alan Sherman, Pittsburgh, Pa., for plaintiffs-appellees; Austin T. Klein, Krause, Klein, Fromson & Fuerst, Cleveland, Ohio, of counsel.
    Before EDWARDS, PECK and LIVELY, Circuit Judges.
   LIVELY, Circuit Judge.

In this diversity case a jury awarded damages to two private citizens in their action for invasion of privacy against the publisher of The Cleveland Plain Dealer, a reporter and a photographer. At the conclusion of the plaintiffs’ case, in response to a motion for a directed verdict on behalf of all the defendants, the District Court found “that there has been no evidence to support the charges that the invasion of privacy, if in fact an invasion of privacy occurred was done maliciously within the legal definition of that term.” The Court then ordered stricken all allegations relating to punitive damages, and dismissed as to several infant plaintiffs, but denied the motion for a directed verdict as to the two plaintiffs who are appellees. The issue is whether, having ruled that there was no evidence that the defendants had acted maliciously “within the legal definition of that term,” the District Court should have granted a directed verdict. The defendants renewed their motion at the conclusion of all the evidence and made a timely motion for judgment notwithstanding the verdict or a new trial. All these motions were likewise denied. We reverse.

On December 15, 1967 a bridge across the Ohio River at Point Pleasant, West Virginia collapsed. Among the forty-four persons who lost their lives in this tragic accident was Melvin Aaron Cantrell, the 40-year old father of seven children. The “Silver Bridge disaster,” as it was labeled by the press, was page one news throughout the country. The Cleveland Plain Dealer sent the defendant Joseph Eszterhas, a feature writer, to the scene and one of his dispatches which was published a few days later described the funeral of Melvin Cantrell. This story was written in the style of a news feature rather than a purely factual account. It dwelt upon the tragic consequences, rather than the details of the accident itself. The article focused on the condition of the Cantrell family as illustrating these consequences.

In early May 1968 Eszterhas and a Plain Dealer photographer, the defendant Richard T. Conway, returned to the Point Pleasant area to do a follow-up feature. Both newspapermen were off duty and operating free-lance. However, before they left Cleveland one of the editors of the Plain Dealer told them that if they came up with a good story the paper would buy it. After stopping for directions, Eszterhas and Conway went to the home owned by Margaret Cantrell, widow of Melvin, and occupied by her and six children ranging in age from 1 to 16 years. Mrs. Cantrell was not at home and a daughter, Dora, was the oldest child there. During a stay of one to one and one-half hours Conway took 50 pictures and Eszterhas talked with the children. There was little evidence as to whether the reporter and photographer were invited into the house. Dora did not testify, but William David Cantrell who was 13 at the time of the event and 17 at trial time, testified that he saw the men coming across the field and that the door to the house was open. He said no one asked them in and no one asked them to get out. He also said the door was open because the men were coming. William said he assumed the men were from a newspaper, but didn’t ask which one. Neither he nor the other children made any objection to being photographed.

The Sunday Magazine of The Cleveland Plain Dealer for August 4, 1968 carried as its lead feature a story entitled, “Legacy of the Silver Bridge.” The story by Eszterhas contained a number of inaccuracies and implied that Mrs. Cantrell was present in her home when he returned to Point Pleasant in May. Five of Conway’s pictures were printed with the story. In these pictures the Cantrell home appeared to be dirty and run down and the children were poorly clothed and untidy. The hopeless poverty of the family was emphasized in the feature. The reporter again used the condition of the Cantrell family to illustrate the consequences of the bridge disaster. In the more dramatic language of the article, “His death is a microcosm of the scar which will remain permanent and stark upon the spirit of the people here.”

The assistant Sunday editor and assistant managing editor of the Plain Dealer testified that Eszterhas had a good reputation for accuracy of reporting at the time the 1968 article was published. In fact, he won three press awards for his coverage of the Silver Bridge collapse. Conway testified that the photographs fairly depicted the persons and scenes as he found them at the Cantrell residence. He did not suggest that the children make themselves or the home more tidy before the pictures were taken. Joseph Eszterhas did not testify. There was no evidence that Forest City Publishing Company had knowledge of any of the inaccuracies contained in the article.

The complaint alleged that the privacy of the plaintiffs had been violated by the intrusion of the newsman and photographer, for unreasonable publicity about their private lives and for falsely presenting their condition and making them objects of pity and ridicule. Mrs. Cantrell brought suit for herself and all of her children, but all plaintiffs except Mrs. Cantrell and one son, William David Cantrell, were dismissed by the Court. The complaint also charged the defendants with “malicious and defamatory libel.” As developed by the evidence the intrusion complained of consisted of publication of an article which placed the Cantrell family in a bad light because of its inaccuracies and untruths. This is the way the matter was presented to the jury and there is no complaint on appeal concerning the jury charge. On appeal the appellees attempt to treat the entry of the two defendants into their home without an invitation when only children were present as the intrusion for which damages were justified. However, this was not the theory on which the case was tried in the District Court.

Our search for the controlling principles in effect today begins with New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), a civil libel action. In that case, the Supreme Court enunciated a federal rule, required by the Constitution, which denies recovery to a public official for defamatory falsehood concerning his official acts unless he proves actual malice, that is, that a statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279-280, 84 S.Ct. at 726. The Court reasoned that to permit virtually unlimited libel judgment against critics of official conduct for failure to determine the truth of every assertion made would lead to a self-censorship by news media that would be as stifling to the widespread dissemination of information as official censorship. In Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), the same requirement for recovery was applied to a prosecution for criminal libel based on statements made about public officials. Furthermore, the rule of New York Times was extended to cover false statements about anything which might relate to an official’s fitness for office, not just his official conduct.

In Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), it was held that the term “public officials,” for purposes of the New York Times rule, includes all government employees having, or appearing to have “substantial responsibility for or control over the conduct of governmental affairs.” Id., at 85, 86 S.Ct. at 676. It had been contended that the rule applied only to libel actions by elected officials. The same requirement for recovery has been applied to civil libel actions by candidates for public office, Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971); Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 91 S.Ct. 628, 28 L.Ed.2d 57 (1971), and to cases where the plaintiff is a “public figure” rather than a public official. Greenbelt Cooperative Publishing Association, Inc. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970). In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), recovery in a civil libel action for .a defamatory falsehood contained in a broadcast was denied to a private citizen who was neither a “public official” nor a “public figure” where actual malice as defined in New York Times was not proven. The plurality opinion of three members of the Court extended the requirement of a showing of actual malice for recovery to matters of “public or general interest.” 403 U.S. at 43, 91 S.Ct. 1811. In addition, this opinion required a standard of “clear and convincing proof” that the defamatory falsehood was published with knowledge that it was false or with reckless disregard for its truth or falsity which must be met to sustain a libel action against one within the protection of the First Amendment.

In the course of developing the scope of privilege conferred upon the news media with regard to actions seeking damages for libel and defamation, the Supreme Court was called upon to apply the New York Times principles to a case of invasion of privacy. In Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), recovery of damages under a New York right of privacy statute was not permitted in the absence of a showing that a false report of a newsworthy event was published either with knowledge of its falsity or in reckless disregard of its truth or falsity.

The case involved an article which appeared in Life magazine in February 1955 and was a highly fictionalized account of an ordeal experienced by the Hill family more than two years earlier when they were held hostage in their home for 19 hours by three escaped convicts. The Hills had moved to a different state and had discouraged all efforts by the media to keep them in the spotlight. The occasion for the article in Life was the opening in New York of a play, based on a novel which had appeared in 1953. Reports of a number of hostage incidents were used as source material by the novelist, and the Hill family was not identified in the novel or the play. The pictures which accompanied the Life article were taken at the former Hill residence where the incident had occurred, with actors portraying events which were quite different from' the actual experiences of the Hills. These pictures indicated that the convicts has mistreated the family, whereas Mr. Hill had stated to newsmen immediately after the release of the family that there had been no violence, that no one was molested by their captors and that the family had been treated courteously.

One important difference between Hill and the present case is that the opening of the New York play was considered a matter of sufficient public interest to justify bringing the actual incident back into the news. 385 U.S. at 388, 87 S.Ct. 534. There is no evidence of any activity related to the “Silver Bridge disaster” which would have naturally rekindled public interest in the event. Nevertheless, the article complained of appeared less than nine months after the event and we believe the “journalistic judgment” of a newspaper publisher (Cf. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973)) cannot be circumscribed by linking newsworthiness solely to the passage of time.

In their briefs the appellees seek to differentiate Time, Inc. v. Hill, supra, on the further ground that there was no physical intrusion by representatives of Life, whereas Eszterhas and Conway did intrude into the Cantrell home. The two newsmen may have been guilty of a trespass against the property of the Cantrells. However, the gravamen of this action lies in the claim that the publication of the article, not the physical intrusion, damaged the plaintiffs. Appel-lees cite Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971), for the proposition that the physical intrusion into their home is sufficient invasion of privacy to sustain the judgment. In Diete-mann two reporters gained entrance to the home of the plaintiff by subterfuge, and took pictures with a hidden camera and recorded conversations by means of a hidden microphone. The Court held that the later publication of some of the pictures and printed matter based on the recordings did not immunize the publisher from responding in damages for the intrusion. The Court found that the invasion of privacy consisted of the clandestine photography and recording and that “publication is not an essential element of plaintiff’s cause of action.” 449 F.2d at 249. In her testimony Mrs. Cantrell claimed no injury from the entry of the two defendants on her premises, but testified that the article made her mad and upset her because of all the untruths it contained. On cross-examination she said that she objected to the Plain Dealer article for what it said, not because of the publicity. Here publication was clearly an essential element of the cause of action.

In Varnish v. Best Medium Publishing Co., 405 F.2d 608 (2d Cir. 1968), cert, denied, 394 U.S. 987, 89 S.Ct. 1465, 22 L.Ed.2d 762 (1969), relied upon by plaintiffs, the Court specifically found that the evidence of invasion of privacy was sufficient to establish that an article containing falsehoods was published with knowledge of its falsity or in reckless disregard for truth. In the present case the District Judge made a finding that there was no evidence to support the claim that an invasion of privacy was done maliciously “within the legal definition of that term.” A finding of actual malice as defined in New York Times, is not required only for punitive damages, but is necessary also to support an award of compensatory damages. Having correctly determined that there was no evidence of known falsity or reckless disregard of the truth, the District Court should have granted the motion for a directed verdict as to all defendants.

There is an unavoidable conflict between the desire of most individuals for anonymity and privacy and the right of the people to enjoy a free flow of information guaranteed by the freedom of press provision of the First Amendment. There is no explicit guarantee of the right of privacy in the Constitution, nor was an action for its violation known at common law. The advent of this action has been traced by most commentators to an article, The Right of Privacy, by Warren and Brandéis which appeared in the Harvard Law Review in 1890 (41 Harv.L.Rev. 193). Though this article provides the rationale for recognition of the right, developments over the years have led to fundamental departures from the ideas expressed in it.

A legally protected right of privacy has been declared to exist in most American jurisdictions, including Ohio and West Virginia. See Prosser, Privacy, 48 Calif.L.Rev. 383. The Restatement of Torts also recognizes the concept:

The right of privacy is invaded when there is:

a) An unreasonable intrusion of one’s seclusion, or
b) An- appropriation of the other’s name or likeness, or
c) Unreasonable publicity given to one’s private life, or
d) “Publicity which unreasonably places the other in a false light before the public . . . . ”

Restatement 2d, Torts, § 652A.

Dean Prosser has written that the Restatement actually describes the invasion of four different interests and that four separate torts are included in the right of privacy, having in common an interference with the right “to be let alone.” Prosser, op cit. at 389.

In dealing with privacy eases it is important that a court recognize and treat differently the various wrongs which are included in the general concept of invasion of privacy. With reference to the classifications of the right of privacy set forth in the Restatement and Prosser, the action of the Cantrells was tried as one for publicity which unreasonably places a person in a false light before the public. Time, Inc. v. Hill, supra, was concerned with a New York statute which forbade the appropriation of a person’s name or a likeness for profit. On appeal, it was presented as a “false light” case, since it was agreed that the right of the plaintiffs to recover depended on proof that the account of their experience was fictionalized. Since falsity was an element of the wrong, the Court applied the rule from New York Times v. Sullivan, supra. Since the present case was tried under the same theory as to the type of invasion of privacy complained of, we have sought to apply the rule of Time, Inc. v. Hill, supra.

While the Constitution does not explicitly guarantee the right of privacy, the Supreme Court has held that such a right does exist and is protected by various provisions of the Bill of Rights. See Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). When an invasion of privacy involves publication, the First Amendment must be considered and a mere balancing of rights will not suffice. If there are preferred positions among the rights guaranteed by the Bill of Rights, certainly such priority attaches to freedom of speech and the press rather than to the less explicit and less well defined right of privacy. See Lusky, Invasion of Privacy: A Clarification of Concepts, 72 Columbia L.Rev. 693. When the particular invasion of privacy complained of consists of publicity which places the plaintiff in a false light in the public eye, and the publication meets a reasonable standard of newsworthiness, then an action may be sustained only if actual malice as defined in New York Times v. Sullivan, supra, is established.

Our holding does not mean that a private citizen who involuntarily becomes newsworthy in the judgment of a publisher will forever remain a fair subject of publicity. In two cases decided forty years apart, Melvin v. Reid, 112 Cal.App. 285, 297 P. 91 (1931), and Briscoe v. Reader’s Digest Association, 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34 (1971), the Supreme Court of California dealt with situations where publications which were essentially truthful were held to constitute an invasion of privacy because the passage of time had rendered the subjects of the articles no longer newsworthy. In each ease criminal activities which had occurred many years earlier were publicized and the person revealed to have committed them was at the time of the publication an accepted member of society who had made a clean break with the past. In Briscoe the California Court held that a person who was formerly in the news, after a period of time, was entitled to the “expectation of anonymity regained.” 93 Cal.Rptr. 866, 483 P.2d at 41. These cases correctly establish a rule that there is no absolute immunity from damages for publishing truthful matters about essentially private persons long after their connection with newsworthy events has ceased to exist. This is particularly true when the matter made public is offensive according to the standards of reasonable men.

On the other hand, despite vigorous efforts to avoid publicity, some people remain newsworthy because of circumstances which arouse a legitimate interest in their lives. In Sidis v. F-R Publishing Corporation, 113 F.2d 806 (2d Cir. 1940), cert, denied, 311 U.S. 711, 61 S.Ct. 393, 85 L.Ed. 462 (1941), this was held to be true in the case of a child prodigy who had made every effort for 25 years to avoid publicity and for whom the results of later publicity were disastrous. The judgment of what is newsworthy must remain primarily a function of the publisher. However, in cases where essentially private persons are the subject of publicity because of their involuntary connection with events of widespread interest, this discretion or judgment of the publisher cannot be absolute. The curiosity and voracious appetite of the public for scandal would be too easily exploited by unscrupulous publishers. The right of the public to know is clearly one of the primary values protected by the First Amendment and its “. . . guarantees are not for the benefit of the press so much as for the benefit of all of us.” Time, Inc. v. Hill, supra, 385 U.S. at 389, 87 S.Ct. at 543. No test has been authoritatively formulated (see Bloustein, Privacy, Tort Law and the. Constitution, 46 Texas L. Rev. 611, 626 for a thoughtful suggestion) for judicial review of “newsworthiness” in these cases. Only in cases of flagrant breach of privacy which has not been waived or obvious exploitation of public curiosity where no legitimate public interest exists should a court substitute its judgment for that of the publisher. This is not such a case.

In Rosenbloom v. Metromedia, Justice Brennan writing for the Supreme Court stated the problem and the American answer to it as follows :

We are aware that the press has, on occasion, grossly abused the freedom it is given by the Constitution. All must deplore such excesses. In an ideal world, the responsibility of the press would match the freedom and public trust given it. But from the earliest days of our history, this free society, dependent as it is for its survival upon a vigorous free press, has tolerated some abuse. In 1799, James Madison made the point in quoting (and adopting) John Marshall’s answer to Talleyrand’s complaints about American newspapers, American State Papers, 2 Foreign Relations 196 (U. S.Cong. 1832) :
“ ‘Among those principles deemed sacred in America, among those sacred rights considered as forming the bulwark of their liberty, which the Government contemplates with awful reverence and would approach only with the most cautious circumspection, there is no one of which the importance is more deeply impressed on the public mind than the liberty of the press. That this liberty is often carried to excess; that it has sometimes degenerated into licentiousness, is seen and lamented, but the remedy has not yet been discovered. Perhaps it is an evil inseparable from the good with which it is allied; perhaps it is a shoot which cannot be stripped from the stalk without wounding vitally the plant from which it is torn. However desirable those measures might be which might correct without enslaving the press, they have never yet been devised in America.’ ” 6 Writings of James Madison, 1790-1802, p. 336 (G. Hunt ed. 1906) (emphasis in original). 403 U.S. at 51, 91 S.Ct. at 1823.

Although Mrs. Cantrell and her son were displeased with the article published by the Plain Dealer and the article was not as carefully written as it should have been, nevertheless there was no proof that the Forest City Publishing Company printed and distributed the article with any knowledge of the falsities contained in it or in reckless disregard of whether or not it was true. Absent a calculated falsehood, the publication or broadcast of material concerning an event of public interest may not result in the imposition of a judgment for damages because of falsehoods or distortions arising from negligence or poor reporting. The failure of the defendant Forest City Publishing Company to verify the factual assertions in the story is not condoned, but there was no evidence of calculated falsehood. See St. Amant v. Thompson, 390 U.S. 727, 733, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968).

The judgment of the District Court is reversed and the case remanded for entry of judgment for the defendants.


source: Caselaw Access Project

author: WIDENER, Circuit Judge: CRAVEN, Circuit Judge

license: Public Domain

text:
    Walker F. RUCKER et al., Plaintiffs-Appellants, v. Edward E. WILLIS et al., Defendants-Appellees.
    No. 73-1570.
    United States Court of Appeals, Fourth Circuit.
    Argued June 4, 1973.
    Decided Aug. 23, 1973.

      Norman B. Smith, Greensboro, N.C. (Smith, Patterson, Follín & Curtis, Greensboro, N.C. on brief), for appellants.
    Peter R. Steenland, Atty., U. S. Dept, of Justice, John R. Hughes, Greensboro, N.C. for Twin Piers and Willis (Wallace H. Johnson, Asst. U. S. Atty. Gen., Thomas P. McNamara, U. S. Atty., John E. Lansche, Asst. U. S. Atty., and Edmund B. Clark, Atty., U. S. Dept, of Justice, on brief), for appellees.
    Before HAYNSWORTH, Chief Judge, and CRAVEN and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge:

In this appeal, plaintiffs seek to reverse the denial of a temporary injunction which would have enjoined pendente lite the construction of a proposed marina and piers on Bogue Bank, Carteret County, North Carolina, a part of North Carolina’s outer banks. Plaintiffs’ claim is predicated upon the assertion that the Corps of Engineers acted illegally in issuing a permit under 33 U. S.C. § 403 without first preparing an environmental impact statement pursuant to § 102(2) (C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4331 et seq. The principal issue argued on appeal is whether the Corps of Engineers abused its discretion in determining, under the particular facts of this ease, that the granting of a permit for the construction of fishing piers and a boat basin was not a major federal action significantly affecting the quality of human environment so as to require preparation of an environmental impact statement.

Finding neither an abuse of discretion by the Corps of Engineers nor sufficient federal involvement to constitute major federal action, the district court denied plaintiffs’ motion for a temporary restraining order and preliminary injunction.

We find neither improvident exercise of discretion by the district court nor abuse of discretion by the Corps .of Engineers and affirm.

I

Edward E. Willis owns a tract of land on Bogue Bank, immediately to the east of the town limits of Emerald Isle, occupying the entire width of the Bank from the Atlantic Ocean to Bogue Sound. Willis and Twin Piers, Inc., have entered into an arrangement for the development of this property by the construction thereon of the proposed marina and piers.

On December 7, 1972, the Wilmington, North Carolina District of the United States Army Corps of Engineers received a request from Edward E. Willis, Salter Path, North Carolina, for a permit authorizing him to construct, on and adjoining his property above referred to, a commercial fishing pier extending about 1,000 feet into the Atlantic Ocean, and to construct, on the opposite side of the bank, a fishing and boating pier on Bogue Sound, including a boat basin and access channel created by dredging. This application for a permit was considered by the Corps under Rule 11(c) of its regulations governing the preparation of environmental statements. 37 Fed.Reg. 2525 (Feb. 2, 1972). Paragraph 11(c) provides, in relevant part:

“Regulatory permits. In evaluating permit applications, the District Engineer will carefully evaluate the impact on the environment of the proposed action considering environmental information provided by the applicant, all advice received from Federal, State and local agencies, and comments of the public. If the District Engineer believes that granting the permit may be warranted but could lead to significant environmental degradation, an environmental statement will be prepared. . . .”

Accordingly, public notice of this application was given on January 4, 1973. Copies of the public notice were mailed to the appropriate federal, state and local agencies, numerous environmental groups, and various interested universities, corporations, individuals and private organizations. Included in this mailing were, for example, the regional Bureau of Sport Fisheries and Wildlife; the regional Bureau of Outdoor Recreation; the regional Field Representative of the Secretary of the Interior; all components of the Department of the Interior ; the regional Shellfish Consultant of the Food and Drug Administration; the Environmental Protection Agency, Permit Branch, Enforcement Division; the regional Director of the National Park Service; the Southeastern Archeological Center of the Park Service; various other officials of the Corps; the Director of Water and Air Resources and the Division of Commercial and Sport Fisheries, both of the North Carolina Department of Natural and Economic Resources; the Sierra Club; the Conservation Council of North Carolina; the Town of Emerald Isle; the County Commissioners of Carteret County; and approximately 156 other groups, agencies and individuals.

As indicated by the regulations, the purpose of the public notice is to elicit comments about the proposed project for the benefit of the Division Engineer of the Corps. These comments are then considered by the Corps in conjunction with its own analysis of the application in order to determine if the proposed project may be a major federal action having a significant effect upon the human environment, and therefore falls within NEPA’s mandates.

After a three-month period of study and consideration, the Corps determined, on April 6, 1973, that no environmental impact statement was necessary for this project, and it issued the permit in question. On April 19, 1973, the plaintiffs filed their complaint and motion for a temporary restraining order and preliminary injunction. The district court denied that motion on May 4, 1973, 358 F. Supp. 425. This appeal followed.

II

Pursuant to the mandate of the National Environmental Policy Act of 1969, 42 U.S.C. § 4331 et seq., and as expressed in § 102(2) (C) of that Act, 42 U.S.C. § 4332(2) (C), a federal agency has the duty to prepare a detailed environmental statement on every major federal action significantly affecting the quality of the human environment. In order to determine which of its actions as a federal agency triggers the provisions of § 102(2) (C), the Corps has promulgated its own regulations implementing the National Environmental Policy Act. Those regulations, set forth at 37 Fed.Reg. 2525 (Feb. 2, 1972), supra, require the District Engineer to evaluate environmental information about a project before either granting a regulatory permit or withholding it pending preparation of the environmental statement. He is required to consider the advice received from other federal agencies, as well as state and local agencies and comments of the public. In this manner, the official is able to make an informed threshold decision on the applicability of NEPA’s mandates.

In this case, the District Engineer gave public notice of the proposed project to more than 150 groups, agencies and interested individuals. A number of agencies possessing special expertise in relevant subjects conducted studies of the proposed project and submitted their advice and comments. The Bureau of Sport Fisheries and Wildlife, a division of the Department of the Interior, responded by recommending that the Corps modify the proposed permit in order to “adequately protect this valuable estuarine resource.” Apart from these modifications, which were accepted by the Corps, there was no objection to the permit. In addition, the Commissioner of the Division of Commercial and Sport Fisheries of the North Carolina Department of Natural and Economic Resources had no objection. The necessary state permit, representing the coordinated state viewpoint on the project, was issued to the applicant but conditioned upon several terms to insure the affected area against adverse environmental impact. Also, the State Director of Water and Air Resources informed the Corps that his agency had no objection to the project. Similar comments were received from the Board of Commissioners and the Planning Commission of Carteret County.

It is significant that no federal, state, or local agency charged with expertise in these matters expressed any objection other than the minor matters above noted which were corrected by the action of the Corps. The record before the District Engineer included the findings of experts on navigation, marine fishery resources, estuary protection, disposition of dredged materials, beach vegetation, marine soils, air and water pollution, planning and zoning, and other matters.

Various comments were received from private organizations and individuals expressing adverse viewpoints. Generally, it is the Corps’ normal procedure to refer these to the appropriate agency having that subject matter expertise. In this case, however, those agencies with such expertise had already responded to the public notice and, in so doing, had substantially rebutted most of such comments. Other comments, pertaining to local zoning authority, were referred to the Planning Board of Carteret County which expressed no opposition to the project.

On the basis of this administrative record, the Corps of Engineers determined that an environmental impact statement was not necessary since the granting of the permit would involve no major federal action significantly affecting the environment. This record, plus affidavits submitted by plaintiffs, was examined by the district court which subsequently determined that “the District Engineer and the Corps of Engineers . . . reached a reasonable decision in not requiring an impact statement before granting the permits in this case.”

Plaintiffs argue that an impact statement was required, nevertheless, since regulations issued by the Council on Environmental Quality suggests that a formal impact statement should be prepared with respect to “proposed actions, the environmental impact of which is likely to be highly controversial.” See Council on Environmental Quality, Statements on Proposed Federal Actions Affecting the Environment, Guidelines § 5(b), 36 Fed.Reg. 7724 (Apr. 23, 1971). We reject, however, the suggestion that “controversial” must necessarily be equated with opposition. The term should properly refer to cases where a substantial dispute exists as to the size, nature or effect of the major federal action rather than to the existence of opposition to a use. Otherwise, to require an impact statement whenever a threshold determination dispensing with one is likely to face a court challenge would surrender the determination to opponents of a federal action, no matter whether major or not, nor how insignificant its environmental effect might be. Hanly v. Kleindienst, 471 F.2d 823, 830 (2nd Cir. 1972). See Citizens for Reid State Park v. Laird, 336 F.Supp. 783 (D.Me. 1972).

There can be little doubt that NEPA is a clear mandate to all federal agencies to give careful and informed consideration to environmental values in their decision making process. Calvert Cliffs’ Coordinating Committee, Inc. v. United States Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971). The record before us now reveals, however, a wide-ranging, good-faith assessment by the Corps of Engineers of the potential environmental impact of the proposed project. We find no basis for any suggestions that the decision was arbitrary or reached without adequate consideration of environmental factors. Conservation Council v. Froehlke, 473 F.2d 664 (4th Cir. 1973).

III

Appellants contend that the review of this project by the Corps of Engineers and other interested federal agencies prior to the issuance of the permit to proceed constitutes major federal action within the purview of the National Environmental Policy Act. Yet, as the district court found, for the purpose of the denial of the requested interlocutory injunction, the issuance of a permit in this particular ease fails to meet the indicia which have been utilized by courts in determining the presence of major federal action within the intendment of NEPA.

With no attempt to limit the list, we note past findings of major federal action have involved projects financed in whole or in part by federal funds, e.g., Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971) ($775,000 federal grant for construction of a correctional center); or projects designed or planned in part by a federal agency, e.g., Arlington Coalition v. Volpe, 458 F.2d 1323 (4th Cir.), cert. den. Fugate v. Arlington Coalition, 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261 (1972) (six lane highway planned and financed in part by the federal government) ; or projects to be carried out under the auspices of a federal agency, e.g., Sierra Club v. Mason, 351 F.Supp. 419 (D.C.Conn.1972) (dredging activity under contract by the Corps of Engineers). At other times, courts have focused upon the qualitative impact upon the environment in order to determine whether federal action was major. E.g., Ely v. Velde, supra (location of correctional center in a “uniquely historical and architecturally significant rural community”); Izaak Walton League of America v. Schlesinger, 337 F.Supp. 287 (D.C.D.C.1971) (licensing of nuclear power plant).

This case meets none of those indicia. For example, the project in question is to be financed wholly from private sources. It has not been federally planned or designed. Moreover, the construction of the piers and the dredging of the marina are to be performed by a private contractor, not by the Corps of Engineers. The record now indicates that the effect of granting the permit will be isolated, yielding little or no impact outside the immediate area; no marshlands are involved; no beds of shellfish will be destroyed. In addition, it was stated in oral argument that Bogue Bank is already host to- seven commercial fishing piers similar to the one in question, one located 3% miles east of the Willis property, another 2 miles west. Thus, the Corps’ action does not have the effect of introducing a previously non-existent use into the area. See Hanly, supra.

Although issuing a permit for such a pier is undoubtedly federal action, whether or not it is major federal action, whether or not it will have a significant effect on the human environment, and whether or not the Corps of Engineers abused its discretion are largely, or at least to a considerable extent, factual matters to which we should give due deference to the findings of the district court, especially at this preliminary stage of the litigation, when the ultimate facts are yet to be determined.

Because we find no improvident exercise of discretion by the district court, the refusal to grant the temporary restraining order and temporary injunction is

Affirmed.

CRAVEN, Circuit Judge

(dissenting) :

I cannot accept the theory of my Brethren that from the issuing of the permit in question by the Corps of Engineers, it is a “necessary inference” that the Corps made the proper determinations concerning whether an environmental impact statement was necessary. It can just as easily and logically be inferred that the district engineer, acting for the Corps, misconceived his function, or ignored the requirements of law, since there is nothing in the administrative record to indicate that he was even aware of his duty under 42 U.S.C. § 4832(2) (c) and Rule 11(c) to make specific determinations. No written findings concerning the necessity of an impact statement were ever filed. Even if the district engineer made such a determination he may have so determined for an insufficient reason. In short, there may have been noncomplianee or incorrect compliance with the National Environmental Policy Act and the Corps of Engineers’ own rules.

The majority opinion states that the regulations in force at the time the permit was issued did not specifically require a negative finding as to the necessity of an impact statement. Three days after the permit was issued, however, a regulation of the Corps of Engineers became effective, requiring the district engineer, if he determines that an environmental impact statement is not required, to make a written finding to that effect, setting forth his reasons therefor, and providing that the finding should become, public knowledge. Reg.No. 1105-2-507, fifí 4(b)(2) and 5(g)(2). 38 Fed.Reg.No. 70, pp. 9243-44 (April 12, 1973). Consequently, it seems to me that, as a minimum, the administrative record should be supplemented before the district court by the testimony of the district engineer. This is precisely what was authorized in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 28 L. Ed.2d 136 (1970), although in that case a change in circumstances obviated the need for formal findings. Indeed, I would conclude that under Thorpe v. Housing Authority, 393 U.S. 268, 281-282, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969), the district court, or we, should apply the new regulation to the instant case.

Finally, if it be assumed that the Corps of Engineers made a “finding,” it seems to me that the Corps viewed the proposed construction of the fishing pier and marina as a “zoning” or land-use problem, rather than as an environmental one. I do not think the question readily yields to solution by label. We are told in oral argument that this will be the eighth fishing pier extending into the Atlantic within a distance of some 20 miles. I do not know how many fishing piers are too many, but I think that too many may substantially alter the environment of North Carolina’s priceless Outer Banks. It is, of course, true that the issuance of a permit by the Corps to construct a boat dock on an inland waterway for a private homeowner is not major federal action requiring the preparation of an impact statement. But what about the 500th such permit, or the 10,000th one? At some point “zoning” and environmental impact merge. Ecology is largely a matter of land use.

We cannot tell from this record whether or not the construction of this pier and marina will increase the risk of an ocean breach of the Banks, but even if we assume that will not occur, there remains the issue I have adverted to: whether increasing commercial utilization of the Banks may at some point pass beyond “zoning” and effect significant environmental degradation of a unique national asset. The Corps’s own regulations adopt what seems to me to be the proper test for determining when an environmental impact statement is required: whether the proposed action could have a significant adverse effect on the quality of the environment, not whether it would have such an effect. 37 Fed.Reg. 2525 (February 2, 1972).

Because I believe the construction of such a fishing pier and marina could adversely affect the environmental nature of the Outer Banks, I would reverse the refusal to issue a preliminary injunction and would stop the construction of the pier and marina pending a trial on the merits to determine the necessity for preparation of an impact statement.

      . The United States Army Corps of Engineers has authority to grant permits such as the one in question under provisions of the Rivers and Harbors Appropriation Act of 1899, 33 USC § 403 (1972), which provide :
      “The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, road-stead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.”

      . The more narrow and proper issue for us is whether the district court improvidently exercised its discretion in refusing to issue the temporary injunction. Sims v. Central Trust Co., 123 F.2d 89 (4th Cir. 1941). To set aside the order of the district court, it must be “ . . . plainly an improvident exercise of judicial discretion.” Aberdeen, etc. v. S. C. R. A. P., 409 U.S. 1207, 93 S.Ct. 1, 34 L.Ed.2d 21 (1972). (Opinion in chambers by the Chief Justice.)
      Since the ruling of the district court depends on the actions of the Corps of Engineers, it is in that context the problem will be discussed. The conclusion we reach as to the propriety of the actions by the Corps of Engineers should go only to our review of the actions of the district court on the record before us and does not intimate any opinion on the whole case upon a full record.
      The district engineer issued no written findings. Neither did he specifically state that an impact statement was not necessary. Prom the issuance of the permit, however, the necessary inference is a finding that no impact statement was necessary, since the statute, 42 U.S.C. § 4332(2) (C), and the applicable regulation, 37 Fed.Reg. 2525 (Peb. 2, 1972), para. 11(c), both require a statement if their conditions are met, but do not require a negative finding or statement. Of. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L.Ed.2d 136 (1971).

      . The Willis property is at a narrow part of Bogue Bank, where its width from the Atlantic Ocean to Bogue Sound is about 600 feet.

      . Plaintiffs Walker F. Rucker and wife, Rebecca F. Rucker, own adjoining property immediately to the west of the property being developed. Plaintiffs Mary J. McLean and Sarah J. Jolly and husband, Bruce O. Jolly, own real property located immediately to the west of the Ruckers’ property. The Conservation Council of North Carolina, a private interest group dedicated to environmental concerns, was permitted to be joined as a plaintiff after this action was instituted in the district court.

      . The substantive policy of NEPA, set forth in § 101 of the Act, 42 U.S.C. § 4331, requires the federal government to “use all practicable means and measures” to protect environmental values, to avoid environmental degradation, preserve “historic, cultural, and natural” resources, and promote “the widest range of beneficial uses of the environment without . . . undesirable and unintended consequences.” § 102, 42 U.S.C. § 4332, is procedural, designed to see that all federal agencies do in fact exercise the substantive discretion given them. Where “major federal actions significantly affecting the quality of the human environment” are contemplated, § 102(2) (C) requires agencies of the federal government to draft a “detailed statement” covering the impact of particular actions on the environment, the environmental costs which might be avoided, and alternative measures which might alter the cost-benefit ratio.

      . The plaintiffs did not ask for leave to present oral testimony, relying upon the administrative record and their affidavits.

      . Xo evidence of any breach of tlieobanks or significant erosion caused by the existing piers was produced by plaintiffs, although it is patently the most relevant and material evidence and the easiest to obtain,


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Leonard Joseph JOHNSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Alvin James WHITE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Clinton Crubet WOODS, Defendant-Appellant.
    Nos. 73-1118, 72-3021 and 72-3022.
    United States Court of Appeals, Ninth Circuit.
    July 23, 1973.
    Rehearing Denied in No. 72-3021 Sept 5, 1973.
    Certiorari Denied Dec. 17, 1973.
    See 94 S.Ct. 842.
    Luke McKissack (appeared), Hollywood, Cal., for appellant Johnson.

      Martha Goldin, Atty. (argued), Los Angeles, Cal., for appellant White.
    Norman W. DeCarteret, Sherman Oaks, Cal., for appellant Woods.
    Barry Russell, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
    Before KOELSCH and TRASK, Circuit Judges, and BURNS, District Judge.

       Honorable James M. Burns, United States District Judge, District of Oregon, sitting by designation.

   PER CURIAM:

At trial, the jury found each of the Appellants guilty of violating provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S. C. § 801 et seq., especially §§ 841(a)(1) and 846, (1970). Each Defendant appealed from the resulting judgment of the trial court. We affirm.

The facts in this case (which involve events on June 14 and 29, 1972) appear to follow what has come to be a common pattern. The jury could properly find the following: Operating under cover, Special Agent Brandon, of the Bureau of Narcotics and Dangerous Drugs, relied upon an informant for an approach to the Defendants. On June 14, 1972, the informant, Jackson, introduced Brandon, as a buyer of heroin from Detroit, to Woods at Woods’ home. Brandon and Jackson returned later that afternoon, in Brandon’s car. Johnson was seen, with White as his passenger, driving up to Woods’ home. Johnson entered the home, and shortly after, returned to the ear, and he and White left. In response to a wave from Johnson to Jackson, Brandon drove after Johnson to an adjacent gasoline station. Jackson then introduced Brandon to Johnson. Meanwhile, White walked around the parking lot in the manner of a lookout. After a discussion of a possible “deal” for a one ounce “piece” of heroin, Johnson then walked in the direction of the station building, following White. He returned alone to Brandon’s car, but refused to deal, because he was fearful that police were watching.

Instead, Johnson arranged a second meeting for that evening at a specified club. Under the surveillance of other agents, Johnson drove White directly to the club. Brandon had already met Jackson there. In White’s presence, Johnson mentioned a “sample” previously furnished to Jackson, which the informant had turned over to Agent Maxwell. Johnson discussed a “deal” for a one ounce “piece” of heroin. Johnson drove Brandon to another gasoline station parking lot and left the car. When Johnson returned to the car, a few moments later, he failed to produce any heroin. He claimed that his “connection” had failed to appear. After Brandon protested at this procedure, Johnson explained that, as a result of this procedure and Brandon’s reaction to it, Johnson finally trusted Brandon and that there would be a “deal.”

Johnson instructed Brandon to unlock his automobile, .which had remained in the club parking lot. After they returned to the club, Brandon went back inside. Brandon watched from the club, while Johnson approached the car, opened the driver’s door (which Brandon had unlocked), sat in the car, and then left. Brandon returned to the car and found a condom containing 26.1 grams of heroin on the floor under the steering wheel. Brandon met Johnson in the parking lot and paid him $650 in $50 bills for the requested price of $625. Brandon reentered the club and discussed the deal with Jackson and White. Brandon had one more meeting with Johnson to receive his change. White was present, while Brandon also discussed a possible future “deal” for larger quantities.

On June 29, 1972, Brandon telephoned Woods to say that he was “back in town” and “ready to do business.” After arriving at Woods’ house, Brandon took over from Woods a telephone conversation with White. Brandon indicated he wanted to buy one and one-half pounds of heroin. White responded that such a big order would take more time to arrange. White called back to say that further time would be required. Brandon left Woods’ house. That afternoon, Brandon called Woods and Woods said that the heroin was enroute. Next, White called Brandon to explain that the heroin was being gathered together and that the price would be $18,500. White called again to confirm the terms. Woods made a final telephone call to explain that the deal would be made at his home.

Brandon drove to the house. Johnson, White and Woods were waiting. Brandon followed Johnson to a shed at the rear of the house. Johnson produced a paper bag from the ground and entered the shed, where he shook out six small, plastic bags onto the floor. The bags contained a substance that Brandon thought resembled heroin. Johnson explained that the “deal” would be completed in six ounce segments. After a protest, Brandon agreed. Woods entered the shed during the conversation as to the manner of dealing. Brandon left, claiming that he was going to his car to get his money from the trunk. The Defendants were arrested by other agents shortly thereafter.

On July 31, 1972, the grand jury returned a four count indictment. Count one charged Johnson, White and Woods with a conspiracy, for the period from June 14 through June 29, 1972, to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1), 846 (1970). Count two charged Johnson alone with possession, with intent to distribute, one ounce of heroin on June 14, in violation of § 841(a)(1). Count three charged both Johnson and White with distribution of one ounce of heroin on June 14, in violation of § 841(a)(1). Count four charged all three Defendants with possession with intent to distribute six ounces of heroin on June 29, in violation of § 841(a)(1).

Prior to trial, the United States Attorney filed a notice of nonopposition to Johnson’s motion to suppress evidence. The notice stated that the government did not. intend to use “156 grams of heroin” obtained as the result of the search of the backyard of Woods’ home on June 29, 1972. At the close of the government’s case, the trial court entered judgments of acquittal for all three Defendants on count four of the indictment. The jury found the Defendants guilty as charged on the other three counts of the indictment.

On appeal, Johnson contends that he was entrapped by Jackson, the government informant. White and Woods contend that they are entitled to the benefit of the alleged entrapment. Neither White nor Woods contends that he himself was directly entrapped. None of the Defendants claims error with respect to the instructions given by the trial judge on the entrapment issue. Those instructions included a reference to “the impermissible degree of government participation” and the explanation that, if the ounce of heroin involved in the June 14, 1972, “deal” had been supplied to Johnson by the government informant Jackson, then the Defendants must be acquitted.

We nee’d not decide whether a co-conspirator can claim, as a defense for himself, the alleged entrapment of another co-conspirator. Instead, our review of all of the evidence convinces us that the jury was justified in rejecting the claim of entrapment as to any of the three Defendants. We need not consider the Defendants’ claim that this case falls within the proposed “creative activity” doctrine of United States v. Russell, 459 F.2d 671 (9th Cir. 1972). After the date of oral argument, the doctrine has been rejected by the Supreme Court of the United States in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 1640-1641, 36 L.Ed.2d 366 (1973).

On appeal, White contends that the evidence was insufficient to justify his conviction under count one, for conspiracy to distribute heroin, and count three, for distribution of one ounce of heroin on June 14. We reject the contentions of White.

The sale on June 14 took place under circumstances not unusual in cases of this nature. The sale involved a series of different locations with secretive and furtive movement by the parties involved. There was sufficient evidence to justify a jury concluding that White not only knew of the proposed sale by Johnson to Brandon, but also that White had aided and abetted in the initial attempt at the sale by serving as the lookout during the first meeting between Johnson and Brandon. The record does not explain why the government chose not to oppose the motion to suppress the evidence obtained in the search of Woods’ home on June 29, 1972. The contents of the six plastic bags displayed to Brandon were never identified. Nevertheless, as to the activity leading up to the attempted sale on June 29, the evidence of White’s statements over the telephone to Brandon is ample to justify a jury verdict of guilty on count one of the indictment. There is sufficient evidence on the record. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), United States v. Magana, 453 F.2d 414 (9th Cir. 1972).

White and Woods contend that error was committed when the trial court allowed into evidence the tape recordings taken by Brandon of his conversations with the Defendants during the negotiations leading up to the attempted second “deal.” The Defendants rely upon the law of the State of California, prohibiting the interception of telephone conversations even when one of the parties has given prior consent to the interception, Cal.Penal Code § 632. This reliance upon a state law inconsistent with the applicable federal law is misplaced, 47 U.S.C. § 605, 18 U.S.C. § 2511(2) (c) 1970. See Amsler v. United States, 381 F.2d 37, at 49-50 (9th Cir. 1967).

The other contentions asserted by the Defendants do not possess sufficient merit to justify discussion. All the contentions have been considered carefully. They are rejected. The convictions in each instance are affirmed.


text:
    UNITED STATES of America, Appellee, v. Clifford Keith MERRILL, Appellant.
    No. 72-1707.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jeme 12, 1973.
    Decided July 20, 1973.
    Certiorari Denied Dec. 3, 1973.
    See 94 S.Ct. 594.

      Donald R. Shultz, Rapid City, S. D., for appellant.
    William F. Clayton, U. S. Atty., Sioux Falls, S. D., for appellee.
    Before Mr. Justice CLARK, and HEANEY and BRIGHT, Circuit Judges.

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

   PER CURIAM:

Clifford Keith Merrill, Jr. was found guilty by a jury on three substantive counts of robbery of a federally insured bank and a fourth count of conspiracy to commit such robbery. Merrill challenges his conviction on six points: (1) the Government’s alleged failure to establish the District Court’s jurisdiction, i. e., that the bank was federally insured; (2) use of a transcript of Merrill’s testimony at a previous removal proceeding infringed his privilege against incrimination; (3) the introduction of a spontaneous statement made by the robbery victim at the scene as part of the res gestae; (4) the admission into evidence of a motel registration card bearing Merrill’s fingerprint; (5) the denial of Merrill’s protective motion that in the event he testified, inquiries as to prior convictions would not be permissible; and (6) the Government’s alleged failure to prove beyond a reasonable doubt that the robbery victim’s death was caused by the injuries received in the robbery. We find no merit in any of these contentions and, therefore, affirm the judgment.

1. Proof of F.D.I.C. Coverage:

The federally insured status of the Blackpipe State Bank of Martin, South Dakota, was proved by the certificate of the Federal Deposit Insurance Corporation issued to the bank in the regular course of business. This, together with testimony that the insurance premium was paid, was quite sufficient proof that the bank was federally insured under 18 U.S.C. § 2113(f). Scruggs v. United States, 450 F.2d 359 (8 Cir. 1971), cert, denied, Chambers et al. v. United States, 405 U.S. 1071, 92 S.Ct. 1521, 31 L.Ed.2d 804 (1972).

2. Use of Merrill’s Testimony at Removal Hearing:

Portions of Merrill’s testimony at his removal hearing held in Chicago in which he said that he had never been to Martin, South Dakota, and did not “ever remember going to South or North Dakota’’ were admitted at his trial. Merrill was represented by counsel at the removal hearing and he does not claim that he was not fully and adequately warned of his rights. In fact he was clearly warned at the hearing that his testimony there might be used against him at any future trial. Merrill cites Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 247 (1968), as authority for excluding his prior testimony. There the Court held that Simmon’s testimony at a motion to suppress was not admissible at his trial on the merits. This holding protects a defendant from the necessity of foregoing one constitutional right (privilege against self-incrimination) in order to exercise another one (right to be free from unreasonable search and seizure). In the present case, however, only the privilege against self-incrimination was involved; the exercise of no other constitutional privilege was dependent on Merrill’s decision to testify at the removal hearing. Merrill’s decision was entirely one of trial strategy. The general evidentiary rule is controlling, i. e., that one’s testimony at a prior hearing is admissible in evidence against him at subsequent proceedings. Harrison v. United States, 392 U.S. 219, 222, 88 S. Ct. 2008, 20 L.Ed.2d 1047 (1968). A long line of cases holds that false exculpatory statements are properly admissible as substantive evidence as tending to show guilt. E. g., Rizzo v. United States, 304 F.2d 810, 830 (8 Cir. 1962), cert, denied, 371 U.S. 890, 83 S.Ct. 188, 9 L.Ed.2d 123 (1962).

3. Introduction of Spontaneous Statement of O. A. Hodson:

The record indicates that in the ■ early morning of Monday, October 26, 1970 O. A. Hodson, the 88 year old President of the Blackpipe State Bank at Martin, South Dakota, and his son Richard, an officer of the bank, had breakfast at a local hotel in Martin. O. A. Hodson left the cafe before his son and proceeded to the bank.

Merrill and his stepson, Robert J. Bruce, had driven to the bank earlier in a rented car and had parked near the rear entrance of the bank. Merrill and Bruce had not expected Hodson to appear so early. When the latter had reached the entry way of the bank, Merrill, armed with a pistol, and his stepson ran up to Hodson and demanded that he open the bank door. When he refused, Merrill hit him on the head with the pistol and Hodson began to bleed profusely, whereupon Merrill took the bank keys from him, opened the door and dragged Hodson into the posting room behind the tellers’ section. He then tied Hodson’s hands behind his back and taped his feet and his mouth. When Hodson refused to give the combination of the safe to Merrill, the latter searched through the teller’s cage and drawers and took the bait money. Merrill again demanded the combination and when Hodson refused, kicked him on the buttocks, ribs, belly and back near the left hip. Hodson’s wallet was taken from him and his body was thrown in the corner against a wastepaper basket.

Merrill removed approximately $100 from the wallet and then threw it in the wastebasket. Hodson’s eyeglasses were also found in the wastebasket. Bruce and Merrill were in the bank about half an hour when Bruce became alarmed and fled the bank at the sight of Richard Hodson outside the bank. The father signalled to Richard and he, along with his brother Bruce Hodson, also a bank officer, came running up. When the tape was removed from the elder Hodson’s mouth and his hands were untied, he told his son Bruce:

“He could not believe that somebody would tie and gag another human being and then stomp him. He said, ‘Son, I didn’t think anybody would do that to a dog.’ ”

This conversation was admitted into evidence as res gestae. The record shows that the elder Hodson was nervous, apprehensive and in a state of emotional shock. He was bleeding actively from headwounds. The statements were made under the stress and strain of the moment. Because of these circumstances and the close proximity of the utterances to the event, the trial judge determined that Hodson’s statement was admissible. Such a determination rests with the sound discretion of the trial court, to be disturbed only when clearly erroneous. Roberts v. United States, 332 F.2d 892, 898 (8 Cir. 1964), cert, denied, 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274 (1965). A careful study of the record supports the District Court’s determination.

4. Admission of Motel Registration into Evidence:

There is no merit to the contention that Merrill’s registration card with the Hot Springs, South Dakota, motel, where he and Bruce spent the night the day before the robbery, was improperly admitted into evidence. It was identified by the motel’s manager, who had personally prepared it when Merrill registered and who testified that such registration cards were kept in the ordinary course of business. A motel clerk testified that at the request of the F.B.I. she had searched the motel’s business records for the card. The cards were indexed alphabetically and Merrill’s card was found in its proper place. The card was examined by experts at the F.B.I., who were able to develop Merrill’s latent fingerprint. This proof met the test of 28 U.S.C. § 1732. See United States v. Anderson, 447 F.2d 833, 838 (8 Cir. 1971), cert, denied, 405 U.S. 918, 92 S. Ct. 943, 30 L.Ed.2d 788 (1972). In addition, Bruce testified for the Government that he and Merrill spent the night at the motel as shown on the registration card.

5. Merrill’s Protective Motion Concerning the Use of Former Convictions:

Merrill moved for a protective order prohibiting the Government from cross-examining him on his felony record in the event he took the stand. He claims that because the motion was denied, he was barred as a practical matter from taking the stand in his own defense. It is hornbook law that one who takes the stand in his own defense may be cross-examined relative to prior convictions. United States v. Scarpellino, 431 F.2d 475, 478-479 (8 Cir. 1970).

6. Proof as to the Cause of Death of O. A. Hodson:

Merrill claims that the Government failed to prove beyond a reasonable doubt that O. A. Hodson’s death resulted from injuries which he received in the bank robbery. We have carefully reviewed the record on this point and cannot agree.

Hodson was 88 years of age at the time of the robbery. Prior to the robbery he was in “excellent health,” according to his physician, Dr. Gerald Walton. Dr. Walton was a 38 year old graduate of the Southwestern Medical School at Dallas and had been in the practice at Martin, South Dakota, since 1965. He had been O. A. Hodson’s doctor since coming to Martin and had seen him frequently around town and a few times professionally. During this period Hodson was never hospitalized and suffered no serious illnesses. A routine physical examination made by Dr. Walton on January 8, 1970, indicated that Hodson’s cardiogram was “within normal limits” and his health “excellent.”

On the morning of the robbery Dr. Walton received an emergency call to come to the bank and he arrived there shortly after 8:00 a. m. He found Hod-son “lying on the floor . . . somewhat in a state of emotional shock and very nervous and apprehensive. He was bleeding actively from a head wound.” Dr. Walton had him removed by ambulance to the hospital. Examination showed no evidence of any skull fracture or bleeding under the skin. His blood pressure was 132 over 58, somewhat lower than at previous examinations but “not significantly low.” His respiration and temperature were normal, but his pulse showed “some irregularity.” Tests indicated pus cells in his urine which were related more to trauma than to infection. He had developed a cardiac irregularity with “some weakness and dizziness for several days and ran a persistent elevated blood count, white blood cells . . . ” He was placed on antibiotics “. . . because of his age and the wounds that he had received on the head.” He was discharged from the hospital on October 30 “to home rest.” At the time he was “somewhat weak, still having some cardiac irregularity but his wounds seemed to be healing well at that time.” There was some swelling in the left hip area along with some bruises in the buttocks and hip. Dr. Walton found the heart irregularity to be the result of stress associated with the robbery assault. An examination on November 12 at Dr. Walton’s office revealed an anemic condition with elevated white cell count. Diarrhea had also developed and Mr. Hodson experienced slight confusion and vertigo for several days. Mr. Hodson was returned to the hospital on November 19, 1970, with acute diarrhea and acute urinary retention. He was catheterized and 2000 c.c.’s of urine were removed from the bladder. An earlier urinalysis on October 27 “indicated there was evidence of injury or trauma to the urinary tract.” Hodson began to spike fever on the day of admission to the hospital. The doctor attributed this condition to the urinary tract obstruction and infection in turn related to difficulty in urination and treatment for the diarrhea and to the “possible injury.” During hospitalization Hodson developed fluid in the lungs because his heart was not sufficiently pumping the blood fluid through his system. A tracheostomy was performed on November 25 to facilitate suctioning of the lungs and assist breathing. On November 28 Mr. Hodson suffered a cardiac arrest and died. Dr. Walton found that the causes of death “were related to his initial injuries [suffered at the bank robbery] and complications that developed thereafter. An autopsy of Mr. Hodson by Dr. Freeman revealed “large black and blue areas over the dorsal surface of the hands,” indicative of intravenous infusion; lacerations on the top of the head which were healed; heavier lungs than usual with probable areas of pneumonia; a blood clot in the main artery of the heart: “a normal size heart and remarkably good for a man of his age”; liver within normal weight range; kidneys were normal; bladder was discolored or red; a scar was found in the cerebellum of four weeks or more duration. Dr. Freeman concluded that the cause of death was “hospitalization leading to — with bed rest — leading to bronchial pneumonia and pulmonary em-bolus.”

The cause of death issue was properly submitted to the jury and it found against Merrill. Viewing the evidence, as we must, in the light most favorable to the prosecution, we believe that the Government clearly sustained its burden of proof. Evidence of a chain of causation leading from injuries suffered in the robbery assault to Hodson’s death was strong and there were no missing links in that chain.

In the light of all of these considerations the judgment is affirmed.

      . Merrill asserts that Dr. Walton could not relate the infection, urinary retention or diarrhea to the blows received at the bank robbery. In his direct testimony Dr. Walton did say that “it would be impossible to say specifically that the infection came about as a result of the blows.” However, on cross-examination he was shown the October 27 urinalysis which he said:
      “I hadn’t seen for some time” and this did indicate injury or trauma to the urinary tract. This in turn brought on difficulty in urination and infection. Merrill also claims that there was no evidence of bed rest. The record, however, shows continuous bed rest during two periods of hospitalization together with “home rest.”


author: CLARK, Associate Justice.

text:
    Edward J. DRISCOLL and Marvin L. Rye, Independent Bankers of Minnesota, Commercial State Bank, Appellants, v. NORTHWESTERN NATIONAL BANK OF ST. PAUL and William B. Camp, Appellees.
    Nos. 73-1019, 73-1073.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 14, 1973.
    Decided Aug. 13, 1973.
    Steven M. Gunn, Sp. Asst. Atty. Gen., St. Paul, Minn., made argument for appellant, Driscoll.
    Michael H. Stein, Atty., Dept, of Justice, Washington, D. C., made argument for appellee, Camp.
    Rodger Nordbye, Minneapolis, Minn., made argument for appellee, Northwestern National Bank.

      Before Mr. Justice CLARK, HEA-NEY, Circuit Judge, and SCHATZ, District Judge.

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

       District Judge Albert G. Sehatz, District of Nebraska, is sitting by designation.

   CLARK, Associate Justice.

This declaratory judgment action presents the relatively narrow question of whether appellee Northwestern National Bank of St. Paul, Minnesota (Northwestern), is operating more than one branch bank in violation of state and federal law. This issue was submitted to the District Court and was decided by it on cross-motions for summary judgment. Northwestern presently operates two paying and receiving facilities in addition to its main banking floor. One such facility, which was installed in February, 1971, consists of three walk-up television tellers in the Skyway Building located some 300 feet west of Northwestern’s main banking office, and the other houses six teller stations in the Endieott Building, approximately one and one-half blocks east of the main office. The main office and the two detached facilities are all within a 12 block skyway system that provides covered passageways between buildings and places of business in a section of downtown St. Paul. The District Court, 349 F.Supp. 245, ruled that the 1965 informal action of the Comptroller of the Currency held the walk-up TV tellers to be an extension of its main banking premises and consequently that, under the Minnesota state statute of June, 1971, Northwestern would be entitled to operate a detached facility in the Endi-eott Building on the same skyway pedestrian concourse but located about a block and a half east of Northwestern’s main office and across the street.

We have carefully considered the record before the Comptroller of Currency, as well as the one before the trial court, and have concluded that the summary judgment must be reversed and the action remanded to the Comptroller for further consideration.

1. The Facts:

In 1965, before the present main banking premises of Northwestern had been built, it wrote the Comptroller of Currency soliciting his opinion as to whether its proposed walk-up TV teller facility would constitute a “branch bank” requiring his approval. See 12 U.S.C. § 36. Northwestern represented that its proposed new main banking offices in Capital Centre, then under construction, would “occupy continuous space running from a depository and multi-purpose tellers . . . through to the main concourse, approximately 300 feet away, from which the major banking facilities . . . would fan out.” The walk-up TV teller facility now in controversy would be located about 300 feet away from the main banking premises but connected by a telephonic communication, by a pneumatic tube for the speedy transfer of cash and by a tunnel connection under the street for the transfer of freight as well as by a continuous and uninterrupted pedestrian concourse “along which it is possible that the Northwestern will ultimately be leasing all or a major portion of the ‘retail space.’ ” Some six weeks thereafter the Comptroller of Currency replied that he did not consider the proposed three TV teller stations to be a branch bank but rather an extension of the main banking premises: “These locations, because of their proximity, will constitute but one operation in the public mind.” Certification of the walk-up TV teller facility, he advised, was thus not required and no certification was issued. After completion of its new main banking facility, Northwestern put this TV teller facility into operation in February, 1971.

In June, 1971, Minnesota amended its banking laws to permit each state bank one “detached facility,” where previously no branching at all had been permitted. 1971 Minnesota Session Laws, Ch. 855. The statute defined the term “detached facility” as well as “attached facility” with exact precision, placing the three TV teller stations of Northwestern clearly within the term “detached facility” and limiting the number of such facilities to one. Northwestern, however, applied to the Comptroller of Currency for permission to establish the Endicott facility as its one detached facility under the new state law. Several of the appellants here opposed the application and participated in a hearing held by the Comptroller of Currency. However, the application was approved whereupon they brought this suit founded on the proposition that both the walk-up TV teller facility and the Endicott one were branch banks and that Minnesota law only permitted one such facility. The District Court agreed with the Comptroller of Currency and entered the summary judgment aforesaid.

2. Branch Banking:

It is settled that the McFadden Act, which, as amended, is the controlling statute here, was “intended to place national and state banks on a basis of ‘competitive equality’ insofar as branch banking was concerned.” First National Bank v. Walker Bank and Trust Co., 385 U.S. 252, 261, 87 S.Ct. 492, 497, 17 L.Ed.2d 343 (1966); First National Bank v. Dickinson, 396 U.S. 122, 90 S.Ct. 337, 24 L.Ed.2d 312 (1969). Thus, national banks may compete through branch banking only to the extent that state law permits state banks to utilize this means of competition. Of course, federal law does not incorporate every restriction and limitation that a state sees fit to impose on banks chartered under its own authority, and for this reason the- threshold question of whether a proposed enlargement of a national bank is a “branch” is a question of federal law to be determined initially by the Comptroller and reviewed by the federal courts. First National Bank v. Dickinson, supra. However, the overriding policy of the act is one of “competitive equality” between state and national banks. The Comptroller’s action here is, therefore, quite disturbing. A Minnesota state bank under 1971 state law concededly cannot enjoy the three facilities which Northwestern claims here but must be content with one detached facility. Since the success of the competitive equality doctrine depends to a significant degree on the Comptroller’s determination of whether in a given case a proposed facility constitutes a “branch,” the courts must carefully examine the sufficiency of the factual considerations on which the Comptroller’s decision is based.

3. Basis of the Comptroller of Currency Decision:

In 1965 the Comptroller of Currency gave Northwestern his informal opinion that the walk-up TV teller facility, as then proposed, would not be a branch bank requiring certification. This advice was based on Northwestern’s ex parte representations in 1965 as to the nature of the proposed facility and its location with respect to the proposed new main office premises of the bank. As we have noted, the walk-up TV tellers were not put into operation until almost six years after the Comptroller gave the bank the green light. The changing times pertaining to the proposed facility had transformed it in significant respects. As previously stated, in its April 6, 1965 letter to the Comptroller of Currency, Northwestern represented that “it is possible that the Northwestern will ultimately be leasing all or a major portion of the ‘retail space’ ” along the pedestrian walkway between the main bank office and the walk-up TV tellers some 300 feet away. However, this situation did not materialize with respect to the skyway system since admittedly Northwestern neither occupied nor controlled any of this space. In fact, eight retail businesses and two vacant store spaces separated the walk-up TV teller station from Northwestern’s main banking floor. Indeed, as constructed, a customer at one of the walk-up TV stations cannot see the entrance to the main banking office. In addition, prior to Northwestern’s application to be allowed a facility in the Endicott Building the State of Minnesota had adopted a new bank-branching law. However, the Comptroller of Currency did not consider the 1971 validity of his old 1965 action which held that the walk-up TV tellers were part of the main facility “because of their proximity, will constitute but one operation in the public mind.” Finally, as indicated in the affidavit of the Comptroller of Currency, his 1965 decision was predicated on a finding that the walk-up TV teller facility “does not in any manner constitute expansion or otherwise create an imbalance into a new banking market or otherwise create an imbalance of competitive opportunity in Northwestern’s trade area.” It is not clear in the record what information the Comptroller relied on in making this finding. It shows that there are 16 banks within a radius of 3 miles of Northwestern with only three of them being national banks. An affidavit of a vice president of the Commercial State Bank states that the effect of the ruling of the Comptroller of Currency here “could only be disastrous for the small state banks . . . ”

While at argument the learned trial judge inquired whether the Comptroller of Currency had “an obligation . to go back . . . and look at the judgment made in 1965 . . .” The Comptroller of Currency insisted to the contrary and the court later held with him. We cannot agree. Given the foregoing discrepancies in the record, we think that the Comptroller was obligated to make a fresh determination as to whether the walk-up TV teller station was a branch bank. The 1965 decision was quite informal, was not implemented until 1971, and was never subjected to court review. The Comptroller’s affidavit of May 16, 1972 does no more than attempt to give flesh to his 1965 decision; it does not purport to reevaluate the situation as of 1971. Nor did the Comptroller of Currency weigh the effect of Minnesota’s new branch banking law on Northwestern’s claim for a second detached facility which is not permitted state banks. While its definition is not controlling with respect to national banks, it is certainly relevant to the Comptroller’s decision in the light of the Congressional mandate that he must maintain a state of “competitive equality” between state and national banks. See First National Bank v. Dickinson, supra, 396 U.S. at 136-137, 90 S.Ct. 337.

We therefore reverse the judgment with instructions that the case be remanded to the Comptroller for his further consideration consistent with this opinion.

Reversed and remanded.


text:
    UNITED STATES of America, Appellee, v. Evan WILLIAMS, Appellant. UNITED STATES of America, Appellee, v. Dennis SWANSON, Appellant.
    Nos. 73-1150, 73-1151.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 11, 1973.
    Decided July 24, 1973.
    Certiorari Denied Dec. 3, 1973.
    See 94 S.Ct. 581.

      J. William Gallup, and Edward F. Fogarty, Omaha, Neb., for appellants.
    Thomas D. Thalken, Asst. U. S. Atty., Omaha, Neb., for appellee.
    Before Mr. Justice CLARK, HEANEY and BRIGHT, Circuit Judges.

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

   PER CURIAM:

Appellants Swanson and Williams were convicted of aiding and abetting in the distribution of heroin. On appeal both appellants argue that they were denied an impartial jury in that it was the seventh consecutive jury that had been selected from the same jury panel to decide drug cases involving the same government witnesses. In addition, Swanson contends the District Court erred in refusing to submit any cautionary instructions regarding “the various considerations a jury ought to give before crediting an extra judicial statement.” Williams also complains that the court erred in permitting the prosecutor to elicit testimony that Williams had been read Miranda warnings. We reject each of these claims and affirm the convictions.

Appellants’ trial began on January 17, 1973. Prior to selection of the jury on that day, appellants and their counsel met in the trial judge’s chambers to discuss certain aspects of the trial. It was first agreed that the defendants would have only ten peremptory challenges together rather than ten such challenges each. At this point Williams’ counsel moved for a continuance to a subsequent jury term because some sixteen of the thirty-two jurors, including alternates, on the panel had previously served on one or more of the juries that had heard and decided six consecutive drug cases that term, at which substantially the same government witnesses who were to testify against Swanson and Williams had given testimony. Four of the trials resulted in verdicts of guilty, one ended in a verdict of not guilty and one resulted in dismissal. The District Court overruled the motion as premature; no showing of prejudice had been made at that time. The Court subsequently conducted a voir dire and asked the following questions on the subject of the prospective jurors’ prior exposure to the same government witnesses:

“The mere fact that you served on those juries, heard that evidence, is there anything about that that would make it difficult for you to keep a fair, open and impartial mind ?
“You listen to the evidence in this case. Every case is different.
“Would anyone have any difficulty, even though some of the witnesses might be the same witnesses put on by the Government that you heard in other cases? Would it make it difficult for you ?”

No juror indicated that he had formed an opinion or that he could not be impartial. Neither Swanson nor Williams challenged any member of the panel for cause; nor did either interrogate the panel or any member of it as to any prejudice arising from their sitting in other drug cases or hearing the same witnesses; nor did either appellant move for a continuance or renew the motion Williams had made earlier in chambers. There is no indication that any juror was actually biased. Indeed, Swanson and Williams not only failed to inquire of the panel as to prejudice resulting from the other trials but they forewent any challenges for cause and gave up ten peremptory challenges between them. This action hardly indicates that there is any substance to the prejudice claim. At the most the challenge must rest entirely on a per se theory of implied bias. This Court rejected a like argument in Johnson v. United States, 484 F.2d 309 (8th Cir. 1973), and prior federal eases are uniformly to the same effect. United States v. Haynes, 398 F.2d 980 (2d Cir. 1968); Cwach v. United States, 212 F.2d 520 (8th Cir. 1954); Haussener v. United States, 4 F.2d 884 (8th Cir. 1925). See Casias v. United States, 315 F.2d 614 (10th Cir. 1963). As this Court stated in Johnson, supra, we do not endorse the procedure followed here as being preferred or the most desirable. Still we cannot say that its use is reversible error in the absence of some showing of actual prejudice.

Swanson urges this Court to reverse because the District Court did not instruct the jury to give his confession only such weight as appropriate under all the circumstances. He does not contend, nor could he, that once the court determined for itself that the confession was voluntary pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), it was also constitutionally required to submit the volun-tariness issue to the jury. Lego v. Two-mey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed. 2d 618 (1971). Swanson argues, however, that a voluntariness instruction is required by 18 U.S.C. § 3501(a): “. . . the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.” This provision does not specify any particular wording for an instruction on the weight to be accorded a confession; here the District Court instructed the jury on its responsibility to judge the credibility of the witnesses and weigh their testimony. We are not prepared to say that this instruction was inadequate for purposes of 18 U.S.C. § 3501(a). See United States v. Panepinto, 430 F.2d 613, 618, n. 15 (3rd Cir. 1970). In any event, Swanson waived any error in this regard by failing to object to the instructions as given.

Finally, Williams complains that it was error for the prosecutor to introduce testimony that both he and Swanson were advised of their right to remain silent. Since he did not make any inculpatory statements, Williams argues the reference to Miranda warnings could only have emphasized to the jury that he had said nothing to the arresting officials and must therefore have had something to hide. Officer Newman testified that he advised both appellants of their rights soon after their arrest. The warnings to Swanson were relevant since his statement to the officers was introduced against him. The reference to Williams, who was with Swanson when the warnings were given, does not rise to the level of reversible error. The fact that Williams had been warned of his right to remain silent at most might have drawn attention to the fact that Williams made no statement that the Government decided to use against him. The jury might have thought that he made some statement useless to the prosecutor, either innocuous or exculpatory, or that he made no statement at all. Either inference was reasonable.

The judgments are affirmed.