text:
    NATURAL RESOURCES DEFENSE COUNCIL, INC., a non-profit New York corporation, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
    No. 72-2145.
    United States Court of Appeals, Ninth Circuit.
    Nov. 11, 1974.
    See also 9th Cir., 496 F.2d 1196.

      Richard E. Ayres (argued), Natural Resources Defense Council, Washington, D. C., for petitioners.
    Thomas C. Lee (argued), and James R. Moore, Attys. (argued), Land and Natural Resources Div., U. S. Dept, of Justice, Washington, D. C., for respondent.

      Before TRASK and SNEED, Circuit Judges, and LINDBERG, District Judge.

       Honorable William J. Lindberg, Senior United States District Judge, Western District of Washington, sitting by designation.

   OPINION

TRASK, Circuit Judge:

Petitioners, the Natural Resources Defense Council, Inc. (NRDC), a nonprofit corporation, the Arizona Nurses’ Association, also a nonprofit corporation, and Dr. Richard Abbuhl, individually, challenge the approval by the Environmental Protection Agency (EPA) of various portions of the implementation plan submitted by the State of Arizona under the Clean Air Act Amendments of 1970, 42 U.S.C. § 1857 et seq. (the Act). This court’s jurisdiction to entertain the challenge is founded upon Section 307(b)(1) of the Act, 42 U.S.C. § 1857h-5(b)(l).

The federal-state cooperative scheme of the Act has been well described elsewhere. For present purposes, it is necessary only to reiterate briefly that the Act charges the EPA with responsibility for setting national primary and secondary ambient air quality standards, and imposes upon the EPA the duty of ensuring that the implementation plans of the various states provide for both the attainment of these standards within the statutorily prescribed time periods and the maintenance of these levels thereafter. 42 U.S.C. §§ 1857c — 4, 1857c-5. Petitioners contend that the EPA has breached this duty by approving those elements of the Arizona implementation plan which (1) allow the State to grant variances in a manner unauthorized by the Act; (2) inadequately provide for the full disclosure of emissions data by individual sources of air pollution; and (3) provide for the issuance of permits for new and modified sources of pollution in a manner insufficient to guarantee the attainment and maintenance of national air standards.

Before appraising the merits of these substantive issues raised by petitioners, we shall first consider the standing of each petitioner to assert these arguments before this court.

Standing

The Tenth Circuit, in a similar action brought by the NRDC to test the adequacy of the Colorado, New Mexico, and Utah implementation plans, dismissed the petition for lack of standing. Natural Resources Defense Council, Inc. v. EPA, 481 F.2d 116 (10th Cir. 1973). The court refused to read into Section 307(b)(1) of the Act, 42 U.S.C. § 1857h-5(b)(1), a standing requirement more liberal than that applied by the Supreme Court in other cases in which standing to sue was predicated upon a specific statutory authorization. 481 F.2d at 120 — 121. We agree with this construction of section 307(b)(1). Given the inexorable interrelationship between standing and the constitutional prerequisites of federal jurisdiction under Article III of the Constitution, Flast v. Cohen, 392 U.S. 83, 98, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), we are unable to accept the NRDC’s contention that the statute could confer standing without a prior showing of “injury in fact.” See Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 151-152, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Nor does the legislative history of the section demonstrate, as the NRDC avers, that this is what Congress intended when it established this mode of review for EPA decision-making.

The Supreme Court, in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), and Data Processing, supra, has required litigants who assert standing based upon an enabling statute (as here) to demonstrate that they have suffered an “injury in fact” and that this injury is “arguably within the zone of interests” to be protected by the applicable statute. Sierra Club, supra 405 U.S. at 732-733, 92 S.Ct. at 1365; Data Processing, supra 397 U.S. at 152—153, 90 S.Ct. 827. The “injury in fact” requirement necessitates a showing that the party seeking review be himself among the injured. Sierra Club, supra 405 U.S. at 735, 92 S.Ct. 1361. Neither petitioners nor respondent has seen fit to enlighten the court with respect to the identity of the “petitioners,” their relationship to the State of Arizona, if any, or just how they or any of them are among those who might be injured by any deficiency in the Arizona State implementation plan. The Petition for Review cryptically states in its entirety:

“Natural Resources Defense Council, Inc., Project on Clean Air; Dr. Richard Abbuhl; the Arizon [sic] State Nurse’s Association petition this court for review of the rules and regulations promulgated by respondent (37 Fed. Reg. 10842 [May 31, 1972], 40 CFR Part 52, Subchapter C) insofar as they approve the state air pollution implementation plan for the state of Arizona.”

We therefore requested additional briefs addressed to the critical jurisdictional question that we raised sua sponte. Respondent argued that no sufficient showing had been made and requested that the petition be dismissed. Petitioners, without seeking to amend their petition or supplement the record, see Fed.R. App.P. 16(b), simply described themselves in an unverified memorandum as follows: (1) The National Resources Defense Council, with offices in Palo Alto, California; New York City, New York; and Washington, D.C., is a New York nonprofit corporation that comprises approximately 16,000 members, 107 of whom are residents of Arizona. There has been no allegation or showing on the record in this court that the Arizona members have either requested to be represented or consented to be represented by the NRDC in this action. (2) The Arizona Nurses’ Association is a nonprofit Arizona corporation with approximately 2,300 nurses as members throughout the State of Arizona. The memorandum states that “[t]he Association testified” at some of the public hearings on the Arizona State implementation plan. (3) Dr. Abbuhl is a resident and medical practitioner of Phoenix, Arizona.

While the Arizona resident members of the nonprofit organizations breathe the air of the State and their health and well-being may be affected by pollutants in the air, the constituent corporations neither breathe the air nor is their corporate health affected by it. On the basis of the record before us we are unconvinced that the NRDC has sufficiently asserted or made a showing within Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), to qualify as possessing standing. In a supplemental statement, it is alleged that some of the nurses of the Arizona Nurses’ Association participated in the Arizona hearings, but on the basis of the petition it is doubtful if this corporation is in any better position than the NRDC. There is no doubt, however, that Dr. Abbuhl, as a resident of Arizona, will suffer injury if compelled to breathe air less pure than that mandated by the Clean Air Act. See United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); id. at 703, 93 S.Ct. 2405 (Douglas, J., dissenting in part). On this basis, we are satisfied that there is sufficient individual interest presented in this petition for review to allow us to go forward. The petition is dismissed, however, as to petitioners NRDC and the Arizona Nurses’ Association.

With this preliminary jurisdictional inquiry aside, we may now address seri-atim the specific objections of petitioner Abbuhl to the Arizona implementation plan.

Variances

Under the Arizona statute, any individual source of pollution may apply for a “conditional permit” allowing the source to vary from the requirements of the State’s implementation plan. Such variances may be granted if “additional time is needed for compliance and . the conditional permit, if granted, will not unduly endanger human health or safety either directly or indirectly.” Ariz.Rev.Stat. § 36 — 1712 (West Supp. 1973). Petitioner advances three reasons why this provision should have been disapproved by the EPA as inconsistent with the dictates of the Act. First, this procedure allegedly circumvents the only express mechanism in the Act through which individual exemptions from the requirements of a state’s implementation plan may be granted. Secondly, petitioner contends that this element of Arizona’s plan improperly interjects economic considerations into the State’s program through which national air quality standards are to be attained and maintained. Finally, petitioner asserts that this provision may interfere with Arizona’s ability to regulate in conformity with these standards new and modified sources of pollution. For the reasons hereinafter set forth we reject these contentions of petitioner.

According to petitioner, an individual source of pollution may secure a vari-anee from any requirement of a state’s implementation plan only by application to the EPA, by the governor of the state in question, for a “postponement” under Section 110(f) of the Act, 42 U.S.C. § 1857c — 5(f). The EPA, responding to this argument in earlier challenges to the Agency’s approval of state plans containing similar allowances for variances, construed section 110(f) as relevant only to those exemptions from a state plan that would preclude the attainment or maintenance of national ambient air standards. Natural Resources Defense Council, Inc. v. EPA, 478 F.2d 875, 886 (1st Cir. 1973). The EPA viewed the Act as enabling a state to grant “variances,” subject to approval by the EPA, for reasons other than those denominated in section 110(f) as long as such variances were minor, i. e., did not inhibit national air quality standards. Id. The EPA has since acceded to an intermediate interpretation, articulated by the First Circuit in Natural Resources Defense Council, Inc., supra, that would require mandatory resort to section 110(f), for such minor variances, only in the so-called “postat-tainment” period, i. e., the period after May 31, 1975, the point at which national primary ambient air standards are to be achieved. It is this construction that the EPA asserts here.

The First Circuit, in reasoning that has since been adopted by the Second and Eighth Circuits, Natural Resources Defense Council, Inc. v. EPA, 494 F.2d 519, 523 (2d Cir. 1974); Natural Resources Defense Council, Inc. v. EPA, 483 F.2d 690, 693-694 (8th Cir. 1973), categorized as the “preattainment” period that time within which the states must achieve national primary ambient air standards, viz., “as expeditiously as practicable” but in no case later than 3 years beyond the date on which the state implementation plan is approved by EPA. 478 F.2d at 885. Reading the “as expeditiously as practicable” language of 42 U.S.C. § 1857c — 5(a)(2)(A)(i) as indicative of a congressional intent to allow the states a measure of flexibility during this period, the court accepted the EPA’s allowance of a state’s variance procedure, similar to that at issue here, during this preliminary period. 478 F.2d at 887. The court declined, however, to recognize the availability of such flexibility after May 31, 1975. Rather, the court viewed section 110(f) of the Act as the exclusive means intended by Congress to vary any requirement of a state plan after the attainment date; any other procedure might “invite protracted delay.” Id. at 886. Yet the court acknowledged that some brief and minor variances might be acceptable after this time, without reference to section 110(f), for “mechanical breakdowns and acts of God.” Id.

We do not agree with this interpretation of the Act. While the First Circuit recognized, 478 F.2d at 887, that any variance, whenever sought, which would affect the attainment or maintenance of a national ambient air standard (/. e., a “major” exemption) necessarily can be effected only through the express procedures of section 110(f), and only for the reasons stated in that section, there is no statutory basis for treating minor variances differently in the “preattainment” and “postattainment” periods. Indeed, given the First Circuit’s restrictive reading of the Act as applicable in the postattainment period, it appears inconsistent for that court to acknowledge the need for minor variances, effected in the postattainment period without recourse to section 110(f), for mechanical breakdowns and acts of God. The statute lends itself only to one of two alternatives: either minor variances are possible at any time without recourse to section 110(f), or section 110(f) must be followed for any and all exemptions from a state’s implementation plan.

We read the legislative history of section 110(f) as demonstrative of a congressional intent to have that section apply only in those cases in which a particular variance would prevent the attainment or maintenance of a national ambient air standard. The origin of section 110(f) was section 111(f) of the Senate version of the Act. A portion of the relevant commentary from the Senate report concerning this provision is particularly instructive:

“Finally, the Committee would recognize that compliance with the national ambient air quality standards deadline may not be possible. If a Governor judges that any region or regions or portions thereof within his State will not meet the national ambient air quality standard within the time provided, the bill would authorize him — one year before the deadline — to file a petition against the United States in the District Court of the United States for the district where such region or portion thereof is located for relief from the effect of such expiration.” S.Rep.No.91-1196, 91st Cong., 2d Sess. 14-15 (1970). See also id. at 55 — 56; 116 Cong.Rec. 33,117

(1970) (remarks of Senator Cooper). After Conference, this provision became part of the Act, with only a slight, procedural alteration. That this section was intended to encompass only “major” modifications of a state’s plan — modifications that would inhibit a national standard within a particular air control region — is reaffirmed by the Conference report and the Senate debates accompanying the passage of the Act.

We must now consider whether or not the Act contemplates the issuance by states of “minor” variances, subject always to EPA approval. We agree with the First Circuit that such flexibility, during what that court termed the preattainment period, is indicated by the employment of the term “practicable” in 42 U.S.C. § 1857c — 5(a)(2)(A)(i). We extend this rationale, however, to the time after national standards are to be achieved. Without such an interpretation, it is difficult to perceive any just basis for the Act’s exhortation to the states to promulgate implementation plans even stricter than that required to attain national ambient air standards. See 42 U.S.C. § 1857d-l. As long as a possible variance from a state plan will not preclude the attainment or maintenance of such standards, we discern no legislative intent to commit a state, in toto, to its initial plan, without any flexibility whatsoever. To be sure, we recognize that the Act intends a policy of “nondegradation,” i. e., those geographic areas enjoying air quality superior to that mandated by the Act are not to be made to suffer a reduction in such quality to national standards. Sierra Club v. Ruckelshaus, 344 F.Supp. 253, 255-257 (D.D.C.1972), aff’d per curiam, No. 72-1528 (D.C.Cir. Nov. 1, 1972), aff’d by an equally divided Court sub nom. Fri v. Sierra Club, 412 U.S. 541, 93 S.Ct. 2770, 37 L.Ed.2d 140 (1973) (per curiam). Yet even here a measure of flexibility was written into the Act: the states are to provide for the maintenance of such superior air quality “to the maximum extent practicable.” S.Rep.No.91 — 1196, 91st Cong., 2d Sess. 11 (1970) (emphasis added).

Petitioner argues strenuously that the Act’s conception of “practicability” does not include considerations of economic cost and technological feasibility. Indeed, the portions of the legislative history relied upon by petitioner, as well as several other references in the reports and debates, clearly evince a legislative intent to realize national ambient air standards despite economic cost and in spite of the possibility that some business enterprises, unable to comply with a state’s plan so as to enable that state to attain national standards within the prescribed time period, might have to terminate operations. We do not believe, however, that the Act forestalls consideration of economic and technological feasibility when a variance that will not interfere with national ambient air standards is contemplated. See also Natural Resources Defense Council, Inc. v. EPA, 483 F.2d 690, 694 (8th Cir. 1973); Natural Resources Defense Council, Inc. v. EPA, 478 F.2d 875, 888-889 (1st Cir. 1973). Accordingly, we hold that the EPA properly approved the Arizona “conditional permit” system that allows variances, as long as the public health or safety will not be unduly endangered, if “additional time is needed for compliance” with a particular requirement of the State’s implementation plan.

While finding that the Act permits the adoption of a state “variance” system similar to that contained in the Arizona implementation plan, we nevertheless stress that the ultimate arbiter of the propriety of any particular variance is and must be the EPA. See Getty Oil Co. (Eastern Operations) v. Ruckelshaus, 467 F.2d 349, 358 (3d Cir. 1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973). Thus, should the State of Arizona grant a “minor” variance that does, in fact, alter the attainment or maintenance of a national ambient air standard, the EPA is bound to disapprove this modification of the State implementation plan unless the explicit procedures of section 110(f) are followed and the modification is justified under that section. Indeed, until any variance is sanctioned by the EPA, any source operating in contravention of a state implementation plan that has been approved by that Agency is subject to forced compliance at the instance of the EPA. See Getty Oil Co., supra; 42 U.S.C. § 1857c-8. Since no variance is operative without EPA approval, we do not agree with the First Circuit that the allowance of such variance procedures, in the postattainment period, will “invite protracted delay.” Pending final approval of the variance by the EPA, the individual source is committed to the emissions standards enumerated in the original or previously revised state plan. Moreover, we fail to see how exclusive reliance upon the procedural and substantive hurdles of section 110(f) would facilitate a prompt determination on any particular sought-after variance. See Comment, Variance Procedures Under the Clean Air Act: The Need for Flexibility, 15 Wm. & Mary L.Rev. 324, 334-36 (1973).

We are not unaware that the Fifth Circuit has recently accepted petitioner’s construction of the Act. Natural Resources Defense Council, Inc. v. EPA, 489 F.2d 390 (5th Cir. 1974), cert. granted, sub nom NRDC Inc. v. Train, - U.S.-, 95 S.Ct. 39, 42 L.Ed.2d 46 (No. 73-1742); see also Buckeye Power, Inc. v. EPA, 481 F.2d 162, 167 (6th Cir. 1973) (dictum). With that court, we acknowledge that resort to the legislative history of a statute is unwarranted when the terms of the statute are clear and unambiguous. United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 6 L.Ed.2d 575 (1961); Easson v. Commissioner, 294 F.2d 653, 656-657 (9th Cir. 1961); Gilbert v. Commissioner, 241 F.2d 491, 494 (9th Cir. 1957). To be sure, the express language of section 110(f), standing alone, is not ambiguous. Yet, the failure of the Act to define “revision,” as used in 42 U.S.C. § 1857c-5(a)(3), and to indicate what notions are embodied in the “as expeditiously as practicable” language of 42 U.S.C. § 1857c-5(a)(2)(A)(i), create a lack of clarity in meaning when those sections are juxtaposed with section 110(f) as construed by petitioner and the Fifth Circuit. The words of the statute, in toto, give rise to a “legitimate doubt” as to the meaning intended, and, therefore, justify resort to the legislative history. Maun v. United States, 347 F.2d 970, 976 (9th Cir. 1965). As stated, we do not see in this history a congressional intent to establish section 110(f) as the exclusive mechanism by which all changes of particular application may be accomplished. Compare Natural Resources Defense Council, Inc. v. EPA, 489 F.2d 390, 401 (5th Cir. 1974). Further, since we believe that the EPA’s “revision” authority of 42 U.S.C. § 1857c-5(a)(3) is not the statutory basis for the allowance of variance procedures such as those at issue here, the semantic differences surrounding the various generally accepted definitions of “postponement,” “revision,” and “variance” are irrelevant. This fact, in addition to our different interpretation of the legislative history of the Act, marks the point of departure between our reasoning and that of the Fifth Circuit. See Natural Resources Defense Council, supra, 489 F.2d at 401.

In so construing the Act, we have adopted an interpretation asserted neither by petitioner nor respondent here. It is our duty, however, to apply the statute in accordance with what we perceive to be the congressional intent underlying the Act. Woods v. Benson Hotel Corp., 177 F.2d 543, 546 (8th Cir. 1949); Miller v. Burger, 161 F.2d 992, 994 (9th Cir. 1947); see FTC v. Texaco, Inc., 393 U.S. 223, 226, 89 S.Ct. 429, 21 L.Ed.2d 394 (1968); Rachal v. Allen, 376 F.2d 999, 1002-1004 (5th Cir. 1967). Under usual circumstances, we would accord “great deference” to the interpretation of the EPA, the administrative agency responsible for enforcing the statute. E. g., Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). But we feel less bound by this principle when the EPA interpretation is, as here, merely an accession to a previous judicial decision. Indeed, the construction we adopt is more in tune with the original EPA interpretation that has since been abandoned after the First Circuit’s decision in Natural Resources Defense Council, Inc. v. EPA, 478 F.2d 875 (1st Cir. 1973).

The EPA has informed this court that it intends to revoke its approval of the Arizona plan insofar as that plan allows state variance during the First Circuit’s “postattainment” period. The appropriate administrative processes that, if Arizona failed to modify its plan accordingly, would eventually culminate in the EPA’s promulgation of a substitute, under 42 U.S.C. § 1857c— 5(c), have already begun. Our decision here does not foreclose the adoption by the State of Arizona of an implementation plan that forbids the issuance of variances through means other than that prescribed in section 110(f), 42 U.S.C. § 1857c — 5(f), after that date on which national ambient air standards are to be achieved. The Act expressly authorizes the states to devise implementation plans stricter than required to maintain national air quality standards. 42 U.S.C. § 1857d-l. Our interpretation of the Act, however, precludes the EPA’s rejection of a state plan which contains a provision for variances similar to that at issue here and which is enforced in a manner wholly consistent with the policies underlying the federal statute. Additionally, the EPA may not exercise its authority under 42 U.S.C. § 1857c-5(c) to promulgate a substitute plan for the State of Arizona that, contrary to the intent expressed in the State statute or implementation plan, proscribes the issuance of “minor” variances under a procedure other than that specified in section 110(f).

Petitioner’s final objection to the inclusion within the Arizona plan of a “conditional permit” or variance provision is the assertion that the procedure would undermine the State’s obligation to prevent any interference with national ambient air standards by new and modified sources of pollution. 42 U.S.C. § 1857c-5(a)(2)(D), (4). Under petitioner’s theory, any conditions, designed to protect national air quality standards, that have been incorporated within a state permit required before a new source is constructed or an existing source is modified may be circumvented by subsequent application for a “conditional permit.” Since we conclude, however, that any such permits would not be effectual until sanctioned by the EPA, and that the EPA could not approve such a variance — if such a modification would prevent the attainment or maintenance of a national ambient air standard — unless the procedural and substantive requirements of section 110(f) were met, this argument is without merit.

Confidentiality

The EPA approved the following provision for confidentiality within the Arizona air pollution control statute:

“Any records or other information furnished to or obtained by the director concerning one or more air pollution sources, which records and information relate to production or sales figures or to the processes or production unique to the owner or operator, or which would tend to adversely affect the competitive position of such owner or operator, shall be only for the confidential use of the director in the administration of this chapter, unless such owner or operator shall expressly agree to their publication or availability to the public. No provision of this section shall be construed to prohibit the appropriate governmental agency from publishing quantitative and qualitative statistics pertaining to the emission of pollutants.” Ariz.Rev.Stat. § 36-1708, subd. D (West Supp.1973).

We believe that the last sentence of this quoted section of the statute clearly and adequately ensures public access to emissions data within the State of Arizona, as required by 42 U.S.C. §§ 1857c-5(a)(2)(F)(iii), (iv). Compare Natural Resources Defense Council, Inc. v. EPA, 494 F.2d 519, 522 (2d Cir. 1974); Natural Resources Defense Council, Inc. v. EPA, 489 F.2d 390, 396-397 (5th Cir. 1974). Petitioners’ assertion that the EPA acted inconsistently in approving this element of the Arizona plan, while simultaneously rejecting “virtually identical” provisions in the Kansas and Kentucky implementation plans, is without merit.

As with the approval by the EPA of Arizona’s statutory scheme regarding new and modified sources of pollution (to be examined infra), the appropriate standard of review in appraising the EPA’s sanction of Arizona’s confidentiality provision is that contained in 5 U.S.C. §§ 706(2)(A) — (D) and applied in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-417, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Delaware Citizens for Clean Air, Inc. v. EPA, 480 F.2d 972, 975-976 (3d Cir. 1973); Appalachian Power Co. v. EPA, 477 F.2d 495, 504—507 (4th Cir. 1973). Since we cannot say that the EPA’s determination here was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” it must be sustained under 5 U.S.C. § 706(2)(A).

Regulation of New and Modified Sources

Petitioner’s final objections to the Arizona implementation plan relate to the procedures intended to regulate in conformity with the Act the construction and modification of new and existing sources of pollution. The Act requires that each state include within its plan a “review” procedure designed to ensure that any proposed construction or modification of sources will not inhibit the attainment or maintenance of national ambient air standards. 42 U.S.C. §§ 1857c-5(a)(2)(D), (4). The relevant portion of the Arizona statute declares:

“A new industry hereinafter established shall not begin normal operation until it has secured a permit attesting that its operation will not cause pollution in excess of the standards set by the state board of health.” Ariz.Rev. Stat. § 36 — 1700, subd. B (West Supp. 1973) (emphasis added).

In litigation testing the adequacy of the Iowa implementation plan, the EPA admitted that its approval of a provision similar to that quoted above was improper. Natural Resources Defense Counsel, Inc. v. EPA, 483 F.2d 690, 694 (8th Cir. 1973). This confession of error was based upon a recognition of the Iowa plan’s failure explicitly to forestall any interference with national air quality standards. Since the Arizona provision seeks to guarantee the operation of new sources consistent only with “standards set by the state board of health,” it seems subject to the same infirmity as that which caused the invalidation of the applicable provision in the Iowa plan. Accordingly, the EPA’s approval of this element of the Arizona plan must be set aside in order to effectuate the “reasonable” agency decisionmaking required by 5 U.S.C. § 706(2)(A). Indeed, the EPA has informed the court that administrative action is currently in progress to revise the Arizona regulations appropriately. We direct the EPA to discharge fully its responsibilities under the Act so as to ensure the development of an Arizona plan that gives proper regard to national air quality standards when considering permits for new and modified sources of pollution. See 42 U.S.C. §§ 1857c — 5(a)(2)(D), (4); id. §§ 1857c-5(a)(3), (c)(2)-(3).

Petitioner’s argument that Arizona’s new- and modified-source regulations do not mandate continuing compliance with the State’s “control strategy,” as required by 40 C.F.R. § 51.18(d), is without merit. The Arizona statute provides:

“The director shall deny an installation permit or an operating permit if the applicant does not show that every such machine, equipment, incinerator, device or other article . . . , the use of which may cause or contribute to air pollution, . . . is so designed, controlled, or equipped with such air pollution control equipment, that it may be expected to operate without emitting or without causing to be emitted air contaminants in violation of the provisions of this article and the rules and regulations adopted by the [board of health].” Ariz.Rev. Stat. § 36-1707.02, subd. A (West Supp.1973) (emphasis added).

The operating permits that are to be issued by the Arizona authorities must be renewed annually “subject to compliance with the rules and regulations and the provisions of [the Arizona statute] . . . .” Ariz.Rev.Stat. § 36-1707.01, subd. D. (West Supp.1973). We are satisfied that these provisions, which must be administered in a manner calculated to attain and maintain national ambient air quality standards, amply comport with the requirements of 40 C.F.R. § 51.-18(d). See Natural Resources Defense Council, Inc. v. EPA, 483 F.2d 690, 695 (8th Cir. 1973).

The EPA is directed to secure the development of an Arizona implementation plan in conformity with the views expressed in this opinion.

      . “A petition for review of the Administrator’s action in approving or promulgating any implementation plan under section 1857C-5 of this title or section 1857c-6(d) of this title may be filed only in the United States Court of Appeals for the appropriate circuit. Any such petition shall be filed within 30 days from the date of such promulgation or approval, or after such date if such petition is based solely on grounds arising after such '30th day.”

      . See, e. g., Natural Resources Defense Council, Inc. v. EPA, 489 F.2d 390, 394-396 (5th Cir. 1974), petition for cert. filed, 42 U.S.L.W. 3654 (U.S. May 20, 1974) (No. 73-1742); Natural Resources Defense Council, Inc. v. EPA, 478 F.2d 875, 879 (1st Cir. 1973); Buckeye Power, Inc. v. EPA, 481 F.2d 162, 165-167 (6th Cir. 1973). See generally Luneburg, Federal-State Interaction Under the Clean Air Amendments of 1970, 14 B.C. Ind. & Com.L. Rev. 637 (1973).

      . National primary ambient air quality standards are those standards “the attainment and maintenance of which . . are requisite to protect the public health.” 42 U.S.C. § 1857c — 4(b)(1). National secondary standards are those “requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air.” Id. § 1857c-4(b)(2). For a description of what notions are embodied in the “public welfare” see id. § 1857h(h).

      . The Arizona implementation plan was prepared by a State executive agency based upon the authority of an enabling statute, , Ariz.Rev.Stat. § 36 — 1700 et seq. (West Supp. 1973). Since the Act requires the State’s implementation plan to be consistent with the federal statute, 42 U.S.C. § 1857c-5, a fortiori the State statute may not permit inconsistencies with federal requirements. Accordingly, this court must assess the adequacy under federal law of both the Arizona statute and the derivative implementation plan.

      . In arguing that the statute bestows a “standing” which does not require the assertion of “injury in fact,” petitioners rely upon the following passage from the applicable Senate report:
      “One of the uncertainties in the existing Clean Air Act is the availability or opportunity for judicial review of administratively developed and promulgated standards and regulations ....
      “Administratively developed standards, rules and regulations under the Act and under this bill would clearly affect the interests of persons. The courts are increasingly adapting this test to what administrative actions are reviewable. In several recent cases [Environmental Defense Fund, Inc. v. Hardin, [138 U.S.App.D.C. 391, 428 F.2d 1093] (C.A. No. 23,813, May 28, 1970); Barlow v. Collins (397 U.S. 159, 167, [90 S.Ct. 832, 25 L.Ed.2d 192] (1970); Abbott Laboratories v. Gardiner [sic] (387 U.S. 136, 140-141 [87 S.Ct. 1507, 18 L.Ed.2d 681] (1967))] the Courts have held that even in matters committed by statute to administrative discretion, preclusion of judicial review ‘is not lightly to be inferred . it requires a showing of clear evidence of legislative intent.’ (E. D. F. v. Hardin, supra, p. 7.) The Courts have granted this review to those being regulated and to those who seek ‘to protect the public interest in the proper administration of a regulatory system enacted for their benefit.’ (E. D. F. v. Hardin supra p. 6.) Since precluding review does not appear to be warranted or desirable, the bill would specifically provide for such review within controlled time periods.” S.Rep.No.91-1196, 91st Cong., 2d Sess. 40-41 (1970).
      We read the quoted passage as germane only to the legislative determination that judicial review of the EPA’s approval of the various state implementation plans should be expressly made available. Thus, the statement relates only to the fact of judicial review, and does not purport to specify who may petition for such review. A reading of the cases cited in the report confirms this interpretation. See, e. g., Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093, 1096-1098 (1970).

      . In Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), the Court stated that:
      “[i]t is clear that an organization whose members are injured may represent those members in a proceeding for judicial review.” 405 U.S. at 739, 92 S.Ct. at 1368.
      We note that, in most instances where standing has been accorded to an organization, it is to an unincorporated association whose members, individually and collectively, themselves constitute the organization. This is to be contrasted to the legal corporation, either profit or nonprofit, which is an artificial entity separate and apart from its membership that exists solely by virtue of a charter issued by the state of incorporation. The quoted reference of the Court in Sierra Club, supra, is followed by the citation of NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), wherein the NAACP is described as a nonprofit membership corporation. Id. at 419, 83 S.Ct. 328. The Court stated that “though a corporation,” the NAACP was itself directly engaged in the activities that the state statute would proscribe; it also expressed the opinion that the corporation had standing to assert the corresponding rights of its members. Id. at 428, 83 S.Ct. 328. This “representative standing” was immediately assignable to the nature of the constitutional right asserted in Button, freedom of association, and the Court’s recognition that, “in every practical sense,” the NAACP and its members are “identical.” See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 458-460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). Whatever may the standing of legal corporations, profit or non-profit, to represent ‘members’ who suffer an injury in fact, the allegations here, however, as were the allegations in Sierra Club, are entirely inadequate to sustain claims by these corporations either for themselves or, in representative capacities, for their individual members.

      . The EPA’s decisions regarding the implementation plans of the various states were announced on May' 31, 1972. 37 Fed.Reg. 10,842 et seq. (1972). For those states whose plans were approved at that time, the national primary standards are, accordingly, to be attained by no later than May 31, 1975. See 42 U.S.C. § 1857c-5(a)(2)(A)(i). Since the entire Arizona plan was not approved at that time, and one of the State’s air quality control regions was granted a 2-year extension regarding the attainment of national standards for carbon monoxide, the May 31, 1975, deadline is not precisely accurate for Arizona. See 37 Fed.Reg. 10,849-50 (1972). This distinction is irrelevant for the purposes of deciding the substantive issues of statutory construction involved in this suit.

      . The court rejected the EPA’s contention that this authority was based upon 42 U.S.C. § 1857c-5(a)(3), which allows the EPA to approve “revisions” in a state’s implementation plan. 478 F.2d at 887.

      . Section 110(f) speaks of the postponement from “any” requirement of a state’s implementation plan. If the First Circuit’s interpretation holding this section applicable to minor as well as major variances is correct, then section 110(f) should encompass all exemptions, major or minor, whenever made. See Comment, Variance Procedures under the Clean Air Act: The Need for Flexibility, 15 Wm. & Mary L.Rev. 324, 332 (1973).

      . The provision was changed to require the governor’s application for postponement to be submitted to the EPA rather than to a U.S. district court. See H.R.Rep.No.91-1783, 91st Cong., 2d Sess. 45 (1970), U.S.Code Cong. & Admin.News p. 5374. (Conference report.)

      . In discussing section 110(f) of the conference bill, which was enacted as the 1970 Act, the Conference Committee reported:
      “Under the Senate amendment each State was to hold public hearings and adopt a plan to implement the national ambient air quality standards (or the more stringent State standards) and national ambient air quality goals. The Administrator was required to approve the plan if he found that it provided for attainment of the standard within three years from the date of approval of the plan. The Governor of a State, however, was authorized to petition the Federal district court to extend for a year the period for attaining a standard. The court could grant relief only upon specified showings and each one-year extension could be granted only after the filing of a new petition and making the required showings.
      “The conference substitute follows the Senate amendment in establishing deadlines for implementing primary ambient air quality standards but leaves the States free to establish a reasonable time period within which secondary ambient air quality standards will be implemented. The conference substitute modifíes the Senate amendment in that it allows the Administrator to grant extensions for good causes shown upon application by the Governors.” Id. U.S.Code Cong. & Admin.News 1970, p. 5377 (emphasis added).
      The floor manager of the bill described the provision at issue here as follows:
      “Section 110 requires each State to develop an implementation plan which assures the attainment of the primary ambient air quality region within three years from the date the plan is approved. The plan also must provide for reaching the generally more restrictive levels of air pollution of the secondary standards within a reasonable set time period.
      “If, at the time of plan approval, it appears impossible to bring specific sources into compliance within three years, the Governor of the State may request an extension of the deadline up to two years. The Administrator must be satisfied that alternate means of achieving the standard have been considered (including closing down the source in question), that all reasonable interim measures will be applied and that the State is justified in seeking the extension.
      “A Governor may also apply for a postponement of the deadline if, when the deadline approaches, it is impossible for a source to meet a requirement under an implementation plan, interim control measures have reduced (or will reduce) the adverse effects of the source, and the continued operation of the source is essential to national security or the public health or welfare of that State.” 116 Cong.Rec. 42,384-85 (1970) (remarks of Senator Muskie).

      . Moreover, the Act permits each state to set its own “reasonable” time within which national secondary standards must be realized. 42 U.S.C. § 1857c — 5(a)(2)(A)(ii).

      . The lack of flexibility is ensured by our perception of the legislative history of section 110(f) as encompassing only “major” deviations from a state implementation plan.

      . The proponents of the Senate bill adamantly stressed that the national primary and secondary air quality standards were to be established and realized without regard to economic and technological feasibility:
      “In the Committee discussions, considerable concern was expressed regarding the use of the concept of technical feasibility as the basis of ambient air standards. The Committee determined that 1) the health of people is more important than the question of whether the early achievement of ambient air quality standards protective of health is technically feasible; and 2) the growth of pollution load in many areas, even with application of available technology, would still be deleterious to public health.
      “Therefore, the Committee determined that existing sources of pollutants either should meet the standard of the law or be closed down, and in addition that new sources should be controlled to the maximum extent possible to prevent atmospheric emissions.” S.Rep.No.91-1196, 91st Cong., 2d Sess. 2-3 (1970). See 116 Cong. Rec. 32,901-02, 32,904, 32,906, 32,918-22, 33,099, 33,115 (1970). By contrast, the House version of the 1970 Act allowed consideration of economic and technological feasibility in enforcement proceedings arising when national standards were not met. H.R.Rep.No.91-1146, 91st Cong., 2d Sess. 9 (1970). The strict substantive prerequisites of Section 110(f) of the Act, which accords the exclusive mechanism whereby a state’s plan may be altered to allow noncompliance with a national ambient air standard beyond the prescribed time periods, indicates that the approach of the Senate prevailed in Conference. See H.R.Rep.No.91-1783, 91st Cong., 2d Sess. 44-A5 (1970) (Conference report); 116 Cong.Rec. 42,381-82, 42,384-85, 42,519, 42,523-24 (1970); Hearings on Implementation of the Clean Air Act Amendments of 1970 Before the Subcomm. on Air and Water Pollution of the Senate Comm, on Public Works, 92d Cong., 2d Sess., pt. 1, at 18-19, 21, 24 (1972). Contra, Buckeye Power, Inc. v. EPA, 481 F.2d 162, 168— 169 (6th Cir. 1973). Nonetheless, nowhere in this history is there support for the contention that variances may not be granted based upon factors of cost and technology when the individual variance contemplated will not hamper the attainment or maintenance of national ambient air standards.

      . We speak here of a modification that has already been approved by the EPA.

      . “Prior to the date on which any stationary source ... is required to comply with any requirement of an applicable implementation plan the Governor may apply to the Administrator to postpone the application of such requirement . . . .” 42 U.S.C. § 1857c — 5(f)(1).

      . Rather, we discern the statutory toleration of such flexibility as a “necessary adjunct to the statutory scheme” when this Act is examined in conjunction with its legislative history. See Natural Resources Defense Council, Inc. v. EPA, 478 F.2d 875, 887 (1st Cir. 1973). Moreover, we are not persuaded that the congressional intent to allow a measure of flexibility in the attainment of national primary standards, subject to mandatory attainment within 3 years, bears no correlation to a permissible flexibility in the enforcement of a state’s emissions standards as set forth in its implementation plan. Compare Natural Resources Defense Council, Inc. v. EPA, 489 F.2d 390, 402-403 (5th Cir. 1974). It is through the emissions standards of the various states that the national ambient air standards are to be achieved. See 42 U.S.C. § 1857c — 5(a)(2)(B).

      . The EPA has argued the position of the First Circuit, i. e., that “minor” variances are possible without recourse to section 110(f) only in the preattainment period. Petitioner, on the other hand, has contended that any and all variances, whenever made, must be implemented pursuant to the specific strictures of section 110(f). As discussed above, we hold that section 110(f) need not be con-suited at all for “minor” variances that will not inhibit national air quality standards. See note 20 infra.

      . See 36 Fed.Reg. 22,405 (1971); 40 C.F.R. § 51.32(f) (1973).

      . We reiterate that by “minor” we mean variances that will not interfere with the attainment or maintenance of national ambient air quality standards.

      . The Kansas and Kentucky statutes provided that any “analyses or summaries relating to the general condition of the outdoor atmosphere” that were prepared from data submitted by individual sources of pollution could not “identify, directly or indirectly, any owner or operator or reveal any information otherwise confidential under this section.” Law of April 24, 1967, ch. 347, § 15, [1967] Laws of Kan. p. 668, as amended Kan.Stat Ann. § 65-3015 (Supp.1973); accord Act of Mar. 8, 1966, ch. 22, § 10, [1966] Ky.Acts p. 173, as amended Act of June 27, 1972, ch. 3, § 20, [1972] Ky. Acts 1st Extra Sess. p. 19. No exception authorizing disclosure of emissions data, as present in the Arizona statute, was contained in these laws.

      . Subsequent to the EPA approval of the Arizona plan, the EPA acknowledged that the plan itself may not sufficiently implement the policy of disclosure of emissions data that is required by the Arizona statute:
      “The pertinent section of the Arizona Plan (Sec. 2.6) speaks of the necessity of an amendment to the statute, rather than providing that such emissions reports shall be made available, and, therefore, the Administrator, upon reconsideration, has no alternative but to direct revision of the Arizona Plan in this respect. This will be done as promptly as possible.” Brief of Respondent at 24.
      We have been advised by the EPA that appropriate administrative proceedings to achieve the necessary clarification of the Arizona plan have been initiated and are continuing during the pendency of this action. Since we read the Arizona statute to provide the degree of disclosure mandated by the Act, we do not find that the EPA acted erroneously in originally approving the Arizona plan. We presume, however, that the Arizona plan will be modified in a timely manner to reflect expressly the unconditional availability of emissions data which is allowed unde fhe Arizona statute. See 42 U.S.C. §§ 1857c-

      . “The department shall:
      “7. Grant . . . permits . . . for the installation of new equipment capable of emitting air contaminants to produce air pollution as defined herein “a. No equipment which may cause or contribute to air pollution as defined herein . shall be installed, altered in such a way that it significantly affects operational efficiency, or placed in use unless a permit has been issued for such equipment.” Iowa Code Ann. § 136B.5 (Supp. 1972), as amended, Iowa Code Ann. § 455B.13 (Supp. 1974).

      . The term “control strategy” is defined by the EPA as "a combination of measures designated to achieve the aggregate reduction of emissions necessary for attainment and maintenance of a national standard . . . . ”
      40 C.F.R. § 51.1(n).

      . Further, the implementation plan drafted in accordance with this statute expressly states that “[alpproval of such a permit will not absolve the owner of the responsibility to continue to comply with applicable standards or rules and regulations.” Arizona Implementation Plan at 9-3, in Brief of Respondent, Appendix B, at 42.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America ex rel. Richard W. MATTOX, Petitioner-Appellant, v. Herbert SCOTT, Warden, Illinois State Penitentiary, Joliet Branch, Respondent-Appellee.
    No. 74-1391.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 4, 1974.
    Decided Dec. 12, 1974.
    Rehearing Denied Jan. 2, 1975.

      James T. Otis, Clarence O. Redman, Larry S. Goldberg, Chicago, Ill., for petitioner-appellant.
    William J. Scott, Atty. Gen., Robert Davy, Asst. Atty. Gen., Bernard Carey, State’s Atty., Chicago, Ill., for respondent-appellee.
    Before MARIS, Senior Circuit Judge, and CUMMINGS and PELL, Circuit Judges.

       Senior Circuit Judge Albert B. Maris of the Third Circuit is sitting by designation.

   PER CURIAM.

In a bench trial, this habeas corpus petitioner was convicted of the murder of Harvey Weinstein and received a 20— 30 year sentence, which was affirmed on appeal. People v. Mattox, 96 Ill.App.2d 148, 237 N.E.2d 845 (1st Dist. 1968). Leave to appeal to the Supreme Court of Illinois was denied on January 27, 1969. Petitioner’s post-conviction petition under the Illinois Post-Conviction Hearing Act was dismissed, and the order of dismissal was affirmed. People v. Mat-tox, 8 Ill.App.3d 768, 291 N.E.2d 253 (1st Dist. 1972).

The present petition for writ of habeas corpus was filed on May 31, 1973. On June 4th, the district court granted respondent 20 days to answer or otherwise plead. After two additional extensions were granted, on August 16th petitioner filed a motion to set a hearing date. Nevertheless, two more extensions of time were granted before respondent filed a motion to dismiss or for summary judgment on September 18th.

On November 30, 1973, the district court rendered an opinion granting respondent’s motion to dismiss for failure to state a claim, except as to whether petitioner’s Sixth Amendment right to counsel during custodial police interrogation (made applicable to the states by the Fourteenth Amendment) was violated under the rule of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and whether any such violation was harmless. 366 F.Supp. 1294, 1299.

On March 11, 1974, in another opinion, the district court granted respondent’s motion for “summary judgment” with respect to the remaining issues, holding that petitioner’s right to counsel under Escobedo v. Illinois was not violated and that he gave his incriminating statement to the Assistant State’s Attorney voluntarily, so that “the trial judge did not commit a constitutional error when he admitted the statement into evidence” at the murder trial. 372 F.Supp. 304, 311.

Necessity for Evidentiary Hearing

According to petitioner’s February 1971 and October 1973 affidavits and verified petition for habeas corpus, during his interrogation about the Wein-stein murder, he was told by police not to sign anything until he talked to a lawyer but was not advised of his right to remain silent. On October 2, 1963, during the course of his interrogation and after the police had permitted petitioner several unsuccessful attempts to contact his lawyer, petitioner made in-culpatory statements to an Assistant State’s Attorney which were transcribed and admitted at his trial as Exhibit 24. Petitioner followed the advice that he was allegedly given and refused to sign the transcription.

In August 1964, petitioner, against the advice of counsel, testified during a hearing on a motion for a new trial by Mrs. Weinstein, who had been convicted of her husband’s murder prior to Mat-tox’s conviction. During this hearing, petitioner reiterated that he had received advice from the police not to sign anything until he talked to his lawyer. However, on this occasion, he testified that Lieut. Cartan of the Chicago Police Department had also told him when he was under arrest at the Bedford Park Sheriff’s Police Station not to say anything. The colloquy reads as follows:

“Q After you were advised of your legal rights by Lt. Cartan at the Sheriff’s Station, did you tell him what happened the night of September 30th?
A He told me not to say anything, so I didn’t say anything.
Q He told you not to say anything and you said nothing, in the Sheriff’s Station, is that correct?
A I said nothing from then on.”

Petitioner’s testimony at this hearing referred to his criminal record and became Exhibit 25 admitted at his trial.

Respondent filed no affidavits to support his position that during the October 1963 interrogation, petitioner had been advised of his right to remain silent. In deciding the Escobedo issue against petitioner, the district court relied solely on the petitioner’s testimony at the hearing on Mrs. Weinstein’s new-trial motion as proof that he had been so advised. Under the circumstances presented here, we hold that this isolated transcript excerpt is insufficient evidence upon which to justify the denial of an evidentiary hearing. The statement is fairly subject to a number of interpretations other than that it constituted full advisement to petitioner of the right to remain silent. Petitioner’s verified petition and affidavits state hé was not advised of that right. We think, therefore, that an evidentiary hearing should be held to determine if petitioner was properly advised of his Escobedo rights.

We may assume, for the purposes of this opinion and without deciding, that either petitioner’s testimony at the hearing on Mrs. Weinstein’s motion for a new trial correctly recounted the advice that he received at the Sheriff’s police station or that he is bound by said testimony in any event. Even so assuming, we are compelled to conclude that an evidentiary hearing is necessary to determine if petitioner was properly informed of his Escobedo rights. The evidence that petitioner was so informed is his own statement that a Chicago police officer “told me not to say anything.” This is not conclusive evidence that petitioner was informed of his right to remain silent. Being “told” not to say anything at one point in a long period of interrogation is not synonymous with being advised of one’s right to remain silent. There is little in the statement that “[h]e told me not to say anything” which would justify the conclusion that petitioner was fully informed of his Escobedo rights, that he understood those rights, and that his subsequent statements constituted a waiver thereof. Respondent did not choose to elaborate on what petitioner was told when respondent had the opportunity to do so by affidavit in the court below.

Without an evidentiary hearing, the district court could not properly evaluate the admission that it considered disposi-tive. Nothing in the crucial phrase could inform the court if petitioner was told not to say anything just while he was at the Sheriff’s police station or if he was told that he had a continuing right to remain silent which he could exercise even after he had been transferred to Chicago Police Headquarters and an Assistant State’s Attorney had begun to question him before a court reporter. The text of said questioning, which became Exhibit 24 at petitioner’s trial, shows that petitioner was not informed of his Escobedo rights at this time. Petitioner’s testimony at Mrs. Weinstein’s hearing that he never made the statement which became Exhibit 24 was not credited by the district court (372 F.Supp. at 308), so that one cannot infer therefrom that petitioner understood and exercised his right to remain silent. Under the circumstances, we hold that the transcript quotation upon which the district court relied was insufficient evidence that petitioner had been informed of his Escobedo rights and that an evi-dentiary hearing into this question is required. Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 9 L.Ed.2d 770.

In addition to the Sixth Amendment Escobedo point, petitioner’s brief claims that he was entitled to an evidentiary hearing to determine whether he voluntarily made the October 1963 statements admitted as Exhibit 24 at his trial. Respondent argues that this issue is not properly before this Court because it was not raised in the district court. We reject this argument. The petition for habeas corpus claims that the statements were obtained “by police deceit and fraud” in violation of the Fifth and Fourteenth Amendments, and the district court’s second opinion in this case specifically considered the merits of the voluntariness issue. 372 F.Supp. at 308—311. The court below apparently thought that this issue was only indirectly raised by the petition. 372 F.Supp. at 308. In light of the language alleging deceit and fraud in the procuring of the statement and invoking the Fifth and Fourteenth Amendments, we conclude that the petition directly raised the issue of voluntariness.

Except in one particular, we agree with the district court that petitioner’s statements to the Assistant State’s Attorney could be deemed voluntary. As already noted, there is still a factual dispute as to whether the police advised petitioner that he could refuse to say anything if he so desired. The district court itself considered this to be the “most significant” aspect about the vol-untariness issue. Therefore, at the evi-dentiary hearing, the court below must decide whether petitioner was deceived or tricked into giving the 1963 statements by being told merely that his rights would be protected if he did not sign anything. Of course, if the district court determines after the hearing on remand that petitioner had been informed of his right to remain silent, both the Escobedo and voluntariness issues can be resolved in favor of respondent.

Failure to Comply with Time Limits of Habeas Corpus Act and Rule 81(a)(2), Fed.R.Civ.P.

The federal Habeas Corpus Act provides in pertinent part:

“A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.
“The writ, or order to show cause shall be directed to the person having custody of the person detained. It shall be returned within three days unless for a good cause additional time, not exceeding twenty days, is allowed. * * * ” (28 U.S.C. § 2243).

Where, as here, the habeas corpus proceeding involves a person in custody pursuant to a judgment of a state court, Rule 81(a)(2) of the Federal Rules of Civil Procedure increases the additional time for the return of a writ or order to show cause from 20 to 40 days. Rule 81(a)(2) provides as follows:

“The writ of habeas corpus, or order to show cause, shall be directed to the person having custody of the person detained. It shall be returned within 3 days unless for good cause shown additional time is allowed which in cases brought under 28 U.S.C. § 2254 shall not exceed 40 days, and in all other cases shall not exceed 20 days.”

From the language of the statute and the Rule, it is clear that in the case of a petition under 28 U.S.C. § 2254, like this one, the person having custody must respond within three days unless for good cause the district court exercises its discretion to grant additional time not to exceed 40 days. This legislative schedule evidences the viewpoint of the Congress that dispatch is of utmost importance in habeas corpus proceedings. Congress was undoubtedly influenced by the possibility that the habeas corpus petitioner might be unlawfully imprisoned, and the time limits demonstrate its concern for an expeditious determination of that issue. The language is mandatory, “shall not exceed 40 days.” The district court is given discretion to require a reply between 3 and 40 days after the writ is filed, but not thereafter. The Advisory Committee’s notes to the 1971 amendment make it clear that the plight of the overworked state authorities was considered and the period of 40 days was nevertheless deemed the maximum that a petitioner could be made to wait without a response.

Since the Attorney General’s office did not file its motion to dismiss or for summary judgment until 106 days after the district court’s order required it to answer or otherwise plead to the petition within 20 days, the requirements of Section 2243 and Rule 81(a)(2) were not met. Petitioner somewhat halfheartedly contends that he is entitled to be released instanter because of this breach. The Advisory Committee’s notes on Rule 81(a)(2), as amended in 1971, state that “the time allowed in such a case for the return of the writ may not exceed forty days * * *,” but no sanction is provided. We agree with the Sixth Circuit and Professor Moore’s treatise that the Advisory Committee did not intend to provide for a habeas corpus petitioner’s release in the event of a failure to make a timely return, for the burden of default would then fall upon the community at large. Watmuff v. Perini, 427 F.2d 527, 528 (6th Cir. 1970); Allen v. Perini, 424 F.2d 134, 138 (6th Cir. 1970), certio-rari denied, 400 U.S. 906, 91 S.Ct. 147, 27 L.Ed.2d 143; 7 Moore’s Federal Practice, 2d ed., 1 81.05[4] at 81.64r-81.65. Federal Rules of Civil Procedure 12 and 55(a) do not require that the petition be granted by default because Rule 81(a)(2) provides for limited application of the other Rules and default judgments are generally inappropriate in habeas corpus cases. Allen v. Perini, supra at 138.

The district court should have proceeded as if it had received a return from the state authorities, that is, it should have proceeded as provided at the close of 28 U.S.C. § 2243:

“The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.”

See Allen v. Perini, supra at 138, 143; Witt v. Eyman, 343 F.Supp. 392, 394 (D.Ariz.1972). In some cases where the state authorities fail to file a timely return, it may not be necessary for the district court to conduct a full-scale hearing on the merits of the petition. For example, the court may find from a careful examination of the petition that there is a procedural defect, such as a failure to exhaust state remedies. Allen v. Perini, supra, 424 F.2d at 138-139. In this case, however, we have already decided that an evidentiary hearing is necessary. A habeas corpus petitioner may not be required to wait in jail beyond the 40-day limit because the state authorities are tardy with the return. At a point no later than 40 days after the receipt of the writ, the district court must proceed to consider the petition as if a return had been properly made. The statute and Rule 81(a)(2), when read against the backdrop of the policy of dispatch in habeas corpus matters, dictate this procedure. It would also have been appropriate for the district court to censure the staff of the Illinois Attorney General and to refuse to consider the tardy return. See Curtis v. Perini, 301 F.Supp. 444, 445 (N.D.Ohio 1968), affirmed, 413 F.2d 546 (6th Cir. 1969).

Grant of Respondent’s Motion to Dismiss

As noted above, the district court granted respondent’s motion to dismiss for failure to state a claim as to the other points raised in the petition for habeas corpus. The petitioner asserted that the state trial court could not admit in evidence certain articles obtained by an allegedly unconstitutional search of the home of the Weinsteins. The petitioner also asserted that he was incompetent when he waived his right to be free from compulsion to testify against himself and testified in support of Mrs. Weinstein’s motion for a new trial, so that said testimony, containing his criminal record, should not have been considered at his murder trial. Petitioner also attacked the competency of his trial and appellate counsel. For the reasons given in the district court’s first opinion (366 F.Supp. 1294), we agree that the dismissal as to these issues was proper.

The district court’s dismissal order of November 30, 1973, is affirmed. Its judgment of March 11, 1974, is reversed, and the cause is remanded with instructions to grant petitioner an evidentiary-hearing with respect to whether he had been advised of his right to remain silent and had voluntarily made the oral statement of October 2, 1963, with costs on appeal to be borne by the respective parties.

      . Ill.Rev.Stat. ch. 38, § 122-1 et seq. (1973).

      . See Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799.

      . The standards of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, rather than the specific procedural requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, are applicable to this case because the trial began on August 16, 1965, which is before the decision in Miranda and after the decision in Escobedo. See Johnson v. New Jersey, 384 U.S. 719, 721, 86 S.Ct. 1772, 16 L.Ed.2d 882.

      . Because we reverse the lower court’s judgment and remand for a hearing on the merits of the petition, it is not necessary for us to consider the applicability of Fed.R.Civ.P. 56 on summary judgment to habeas corpus proceedings. Accordingly, we do not reach that issue. See 7 Moore’s Federal Practice, 2d ed., H 81.05[4] at 81.65-81.70.

      . Petitioner maintained at that hearing that the inculpatory statements were fabricated by the investigating officers and that he was told to state them.

      . The state also argued orally that the volun-tariness issue was not properly before even the district court because petitioner had not exhausted his Illinois Post-Conviction Act remedies regarding this issue. In light of 111. Rev.stat. ch. 38, § 122-3 (1973), which provides that any claim not raised in the original or amended complaints under the Illinois Post-Conviction Act is waived, and this Court’s recent opinion in United States ex rel. Williams v. Brantley, 502 F.2d 1383 (7th Cir. 1974), we see no merit in the state’s contention. See also United States ex rel. Adams v. Bensinger, 507 F.2d 390 (7th Cir. 1974).

      . In Wallace v. Heinze, 351 F.2d 39 (9th Cir. 1965), certiorari denied, 384 U.S. 954, 86 S.Ct. 1574, 16 L.Ed.2d 550, it was held that a district judge had the “inherent power” to grant additional time beyond the statutory limit for a return in habeas proceedings. We note that the Court did not have the benefit of the 1971 amendment to Rule 81(a)(2) and the Advisory Committee’s notes thereto. It seems possible that the Ninth Circuit would now reconsider its holding, but to the extent that its opinion conflicts with our decision here, we respectfully disagree.

      . The Notes of the Advisory Committee on Rules, speaking of the 1971 amendment, state:
      “The substantial increase in the number of such proceedings [Section 2254 proceed-

        ings] in recent years has placed a considerable burden on state authorities. Twenty days has proved in practice too short a time in which to prepare and file the return in many such cases.”


author: OAKES, Circuit Judge:

text:
    UNITED STATES ex rel. David BLOOMFIELD, Petitioner-Appellant, v. Louis GENGLER, Warden, Federal House of Detention, New York, New York, and Thomas E. Ferrandina, United States Marshal for the Southern District of New York, Respondents-Appellees. John Bennett ETTINGER, Petitioner-Appellant, v. Thomas E. FERRANDINA, United States Marshal, Respondent-Appellee.
    Nos. 400, 401, Dockets 74-2291, 74-2305.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 22, 1974.
    Decided Dec. 11, 1974.

      Herman I. Graber, Seigel & Graber, New York City (William Esbitt, Michael P. Stokamer, New York City, of counsel), for appellant.
    Thomas E. Engel, New York City (Paul J. Curran, U. S. Atty., for the Southern District of New York, Lawrence Feld, Asst. U. S. Atty., of counsel), for respondents-appellees.
    Before MOORE, OAKES and TIMBERS, Circuit Judges.
   OAKES, Circuit Judge:

Appellants, American citizens and residents, were indicted in Canada in 1972 for conspiracy to import, conspiracy to export and conspiracy to traffic in Cannabis Resin (hashish). Appellants were brought to trial in the Saint John County Court where, after presentation of all the evidence, the case was dismissed on a finding by the judge that there was a variance between the offenses charged in the indictment and the proof adduced at trial: while three separate conspiracies were set forth in the indictment, a single conspiracy was proved at trial. Thereupon appellants returned home to the United States.

Pursuant to Canadian law, the Crown appealed the dismissal of the case and the decision of the lower court was reversed. In accordance with Canadian law, the appellate court entered a judgment of conviction for conspiracy to import hashish against the appellants, in absentia. The conviction carries with it a mandatory seven year sentence. Extradition proceedings were commenced after appellants were arrested in the Southern District of New York.

Appellants claim that the applicable treaty does not provide for their extradition; that, in view of the Canadian procedures underlying their conviction, extradition would result in a violation of the guarantee to them of due process of law under the United States Constitution; and that there is insufficient evidence to find probable cause of their guilt. The case comes to us by way of an appeal from orders of the United States District Court for the Southern District of New York, William C. Conner, Judge, denying petitions for a writ of habeas corpus and adopting the opinion of Gerard L. Goettel, United States Magistrate, holding that there were “no valid grounds for refusing the petition for extradition to the Dominion of Canada.” We agree with Magistrate Goettel and accordingly affirm Judge Conner’s orders.

There is need for little discussion of appellants’ treaty and sufficiency points. The appellants were convicted by the Supreme Court of New Brunswick, Appeal Division, of conspiring to import hashish, a violation of § 423(l)(d) of the Canadian Criminal Code.

Under the provisions of the Webster-Ashburton Treaty of 1842, Art. X, 8 Stat. 576, the United States is required to deliver to justice all persons found in the United States who were convicted of a crime committed within the jurisdiction of Canada.

provided that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found would justify his apprehension and commitment for trial, if the crime or offence had there been committed . . .

Appellants argue that if they had been acquitted in a New York state or federal court for the offenses charged in the Canadian indictment, the double jeopardy clauses of the New York state constitution and the federal constitution would have barred the Government’s appeal of the acquittal. From this, appellants argue, in effect, that the treaty confers upon them the extraterritorial protection of these double jeopardy clauses and that extradition is improper.

Appellants’ position, to paraphrase the language of the treaty, is that a full application of the laws of* the place where the fugitives were found would not justify their apprehension and commitment for trial if the crime had there been committed. That is to say, in New York there could have been no conviction after an acquittal and for that reason no grounds for their apprehension. We decline to adopt this rather novel reading of the treaty. We note in passing our agreement with the appellants that, even though no final judgment of acquittal had been entered, there would have been double jeopardy in the United States, United States v. Sisson, 399 U.S. 267, 302-307, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970); Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962), a rule of federal constitutional law applicable to the states under Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), overruling Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937). See generally Note, Government Appeals of “Dismissals” in Criminal Cases, 87 Harv. L.Rev. 1822 (1974).

Their argument, nevertheless, does not take away from the proposition that appellants were convicted under Canadian law, that under existing federal law conspiracy to import hashish is criminal, and that the record evidences sufficient “evidence of criminality” to have justified a trial of the, case. This is all that the treaty requires. Since appellants have not served their sentences, they are extraditable under the Extradition Convention between the United States and Great Britain, Art. VII, 26 Stat. 1508 (1899), and 18 U.S.C. § 3184.

The major point of the appeal, that appellants would be denied due process by extradition, is grounded on not only their claim of conviction in absentia but on the argument that they were never permitted to put in a defense. While ordinarily the courts of the extraditing country will not “inquire into the [internal legal] procedures which await the relator upon extradition,” Gallina v. Fraser, 278 F.2d 77, 78 (2d Cir.), cert. denied, 364 U.S. 851, 81 S.Ct. 97, 5 L.Ed.2d 74 (1960) (claim of Italian trial in absentia), leaving this to executive discretion, of. Sweeney v. Woodall, 344 U.S. 86, 73 S.Ct. 139, 97 L.Ed. 114 (1952), our court has been able to imagine, as we can, situations where the relator on extradition “would be subject to procedures or punishment so antipathetic to a federal court’s sense of decency as to require reexamination” of this principle. Inability to assert a defense might be one such situation. But here there is no indication that, despite representation by counsel, appellants had any defense to make, other than their legal one challenging the indictment. Indeed, it affirmatively appears that Canadian counsel each expressly waived calling any witnesses and rested solely on the legal argument, and that the trial court’s ruling was made after close of all the evidence. Appellants did not appeal the decision of the Appeal Division on this or any other ground so that a conviction against them is outstanding. Our “sense of decency” is not shocked either by this Canadian conviction or by the tough, apparently mandatory sentence of seven years; the importation of drugs across foreign border lines is a serious offense, whatever arguments can be made for “decriminalization” in this country.

Appellants’ claim of conviction in absentia is a technical one; they were present for their trial and they were represented by counsel at the trial level who successfully obtained exclusion of their confessions and an initial ruling dismissing the indictment. Because Canada, as many of our states constitutionally used to do, Palko v. Connecticut, 302 U.S. at 321 n. 1, 58 S.Ct. 149, still permits appeals by the prosecution from adverse rulings of law, with the further fillip that the appellate court may enter a conviction in a proper case, does not mean that the appellants have been shockingly denied any right under American law to be present at all stages of the proceedings. Appellants, moreover, were not tried in absentia. Instead of awaiting the final outcome of the criminal proceeding against them, they left Canada voluntarily after the original dismissal of charges.

The argument raised for the first time on this appeal that the evidence against appellants was insufficient is frivolous, especially in the light of our limited scope of review. Shapiro v. Ferrandina, 2 Cir., 478 F.2d 894, 901, cert. dismissed, 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973). The habeas judge was required to determine whether there was any competent evidence warranting the finding that there was reasonable ground to believe the appellants guilty. There was evidence that appellants acted as lookouts for their coconspirator, Cormier, who was ultimately apprehended with the hashish in his possession. In addition, on appellants’ arrest, they were in possession of a road map suitably marked to show a route crossing the Canadian border at a point where customs officers would not be on duty late at night. The evidence thus provided reasonable ground to believe the appellants guilty.

Judgment affirmed.

      . Shapiro v. Ferrandina, 2 Cir., 478 F.2d 894, 901 & n. 4, cert. dismissed, 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973), states that the phrase “the laws of the place where the person sought shall be found,” contained in the extraditing treaty, refers to the laws of the state where an arrest occurs rather than to the laws of the United States. In the present case, New York does not have a statute which would exactly parallel the crime here charged: conspiracy to import hashish.
      A reading of the few Supreme Court cases dealing with this issue indicates that not only state law may be looked to at all times; the rule is that in interpreting this treaty language, reference may be made to federal law in a situation where, as here, interstate or foreign commerce is involved, particularly in an area where state law may be precluded or preempted by a valid exercise of congressional power. Pettit v. Walshe, 194 U.S. 205, 24 S.Ct. 657, 48 L.Ed. 938 (1904), is not to the contrary. There Great Britain sought the extradition of one convicted of murder and, where the crime of murder was not known to the federal law, reference was made to the murder law of Indiana (where the fugitive was arrested) in order to extradite. Flere the appellants’ crime is covered by federal law, 21 U.S.C. §§ 802(15); 812(c)(10); 846; 952. See also Wright v. Henkel, 190 U.S. 40, 58-61, 23 S.Ct. 781, 47 L.Ed. 948 (1903); Benson v. McMahon, 127 U.S. 457, 8 S.Ct. 1240, 32 L.Ed. 234 (1888).

      . The governing rule of law in extradition cases is that “an offense is extraditable only if the acts charged are criminal by the laws of both countries.” Collins v. Loisel, 259 U.S. 309, 42 S.Ct. 469, 66 L.Ed. 956 (1922); Shapiro v. Ferrandina, supra. Here that rule is expressly found in the governing treaty, the Webster-Ashburton Treaty of 1842, Art. X, 8 Stat. 576.

      . Extradition Convention Between the United States and Great Britain, 26 Stat. 1508, 1510 (1889):
      ARTICLE VII.
      The provisions of the said Tenth Article [of the Webster-Ashburton Treaty] and of this Convention shall apply to persons convicted of the crimes therein respectively named and specified, whose sentence therefor shall not have been executed.
      In case of a fugitive criminal alleged to have been convicted of the crime of which his surrender is asked, a copy of the record of the conviction and of the sentence of the court before which such conviction took place, duly authenticated, shall be produced, together with the evidence proving that the prisoner is the person to whom such sentence refers.
      “Crimes and offences against the laws [of Canada] for the suppression of the traffic in narcotics” were made extraditable crimes under the 1889 Convention by a subsequent convention, 44 Stat. 2100 (1925). Appellants’ argument that they were not “convicted” within Webster-Ashburton because they were convicted on appeal and in absentia is ingenious but is not what the treaty-makers had in mind. Appellants do not press here the argument raised below, that because hashish is now a “controlled substance” rather than a “narcotic drug,” the 1925 Convention does not apply.

      . A certified copy of three pages from the transcript of appellants’ trial was provided by Canadian authorities on request of this court and was added to the record. It shows that appellants’ attorneys offered no evidence in defense, although they had the opportunity to do so.

      . While the confrontation clause of the sixth amendment guarantees the right to be present in the courtroom at every stage of trial, Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136 36 L.Ed. 1011 (1862); Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), this right can be waived. Id.


author: THORNBERRY, Circuit Judge:

text:
    Katie Ruth ANDERSON et al., Plaintiffs-Appellees, v. C. E. BREAZEALE, Defendant-Appellant.
    No. 74-3022
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 7, 1975.
    Rehearing and Rehearing En Banc Denied March 19, 1975.

      A. F. Summer, Atty. Gen., Wm. A. Allain, First Asst. Atty. Gen., James M. Ward, Sp. Asst. Atty. Gen., Jackson, Miss., for defendant-appellant.
    Herman Wilson, Lawyer’s Committee for Civil Rights Under Law, Jackson, Miss., Lionel G. Hest, New York City, for plaintiffs-appellees.
    Before THORNBERRY, MORGAN and RONEY, Circuit Judges.

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

   THORNBERRY, Circuit Judge:

This appeal presents another installment in the civil rights litigation concerning the October, 1964 arrest and resulting summary detention at Parchman Prison, Mississippi, of a group of freedom marchers. In Anderson v. Nosser, 5th Cir. 1972, 456 F.2d 835 (en banc), modifying 438 F.2d 183, we directed entry of a verdict on issues of liability against appellant Breazeale, the superintendent of Parchman at the time in question. Detailing certain conditions under which the plaintiff-appellees were peremptorily imprisoned for parading without a license, which “punishment was solely the work of Breazeale,” 456 F.2d at 839, we held as a matter of law that the evidence proved appellant’s responsibility for wholesale due process violations. We remanded for trial on damages.

In the court below, much of the evidence before the jury consisted of a stipulation in which the defendant admitted the forced consumption of laxative, the stripping of both men and women, and the dismal physical layout of Parchman’s maximum security unit. Out of 157 consolidated plaintiffs, 26 testified. Some claimed special damages such as lost wages due to illness; others described their fear and humiliation; some described severe physical abuse to themselves as well as to others; while a few appeared to have suffered less than the majority. In any event, the testimony served essentially to highlight and supplement with particular individuals’ experiences the basic conditions already established by our en banc decision and the stipulation. Apparently unmoved by these variations in details, however, the jury returned a verdict containing 157 separate awards, each of $500, as compensatory damages. Appellant now urges the complaints against the verdict which he asserted below in his unsuccessful motions for a new trial.

At the outset we are met with appellee’s argument that this appeal is not proper, inasmuch as appellant appealed only the order overruling his post-trial motions but not the judgment itself. This argument is not without persuasive force, given the apparent gist of appellant’s position: namely, that some of those plaintiffs who testified might, under the evidence and charge, have received larger awards, whereas appellant does not seriously attack the identical $500 awards made to those who did not testify. Yet, while we are mindful that “a party who is not adversely affected by the jury’s disregard of its duty cannot complain,” 6A J. Moore’s Federal Practice H 59.08 [4], at 138-39 (1974), appellant’s challenges to the very processes by which the jury performed its duty incline us to view this case as one in which the trial court’s ruling may be reviewed for abuse of discretion. Whiteman v. Pitrie, 5th Cir. 1955, 220 F.2d 914, 919; Rosiello v. Sellman, 5th Cir. 1965, 354 F.2d 219. Finding no abuse, we affirm.

Appellant’s first contention— whether one perceives it as an assertion that the jury breached its duty to consider each plaintiff seriatim or an allegation of a compromise verdict — is due to be rejected. The principal elements of damages in this case were intangibles: mental suffering, anxiety, and emotional indignities. Unlike medical bills, funeral expenses, or damage to physical property, these items were incapable of certain measurement. As in Anderson v. Robinson, 5th Cir. 1974, 497 F.2d 120, 121, another case arising from the Parchman episode, “[w]e are unable to say that the court below abused its discretion in refusing to ask another jury for another set of answers.” Anderson, significantly, affirmed a jury verdict of $5.00 per day against the then Police Chief of Natchez in favor of 150 of these same plaintiffs. • Further, we fail to appreciate appellant’s suggestion that the jurors compromised on the awards, there being no issue of liability in the case. Cf. Vid-rine v. Kansas City Southern R. Co., 5th Cir. 1972, 466 F.2d 1217, 1226. For this reason, as well as the intangible nature of the damages, we consider appellant’s reliance on Vidrine misplaced.

Appellant next maintains that the verdict reflects disguised punitive damages. The short answer is that the verdict form did indeed contain a blank beside each plaintiff’s name, labeled “punitive damages,” in which the jury could have reported such figures as it found appropriate. The jury declined to do so, and we decline to indulge in speculation about the jury’s motives. Cook Industries, Inc. v. Carlson, 334 F.Supp. 809, 817 (N.D.Miss.1971), relied on by appellant, is not in point. There the court simply followed the general rule that punitive damages are not recoverable absent proof of actual damages. Here, by contrast, the jury merely exercised its prerogative to withhold exemplary damages.

In his final point meriting discussion, appellant complains about the admission of two types of evidence concerning beatings. First, some plaintiffs in their testimony had referred to physical abuse of unidentified co-arrestees. Second, testimony was admitted concerning beatings at the hands of highway patrolmen and policemen outside the maximum security unit. Appellant contends initially that this testimony should have been excluded under the law of the case, since the en bane opinion said, apparently in reference to the period at Parchman “[h]ere plaintiff arrestees were not beaten.” 456 F.2d at 841. In addition, appellant argues that he cannot be held responsible for the use of force by others outside his command. He implies that a dilemma was created at trial by the references to unidentified victims, thus leaving the jury to cast him for damages caused by unnamed state officials to unknown arrestees. In view of these unspectacular, uniform individual awards, however, we do not believe the jury did so. We view the error, if any, as harmless on the whole record, F.R. Civ.P. 61, and clearly the district court’s refusal to grant a new trial on this basis manifested no abuse of discretion.

In conclusion, appellant’s allegations of jury misconduct, which the trial judge rejected after interviewing the jurors, are entirely without merit. The order overruling appellant’s motions for a new trial is

Affirmed.


author: GIBSON, Chief Judge.

text:
    UNITED STATES of America, Appellee, v. Michael WIEBOLD, Appellant.
    No. 74-1542.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 13, 1974.
    Decided Dec. 17, 1974.

      William J. Riedmann, Riedmann & Welsh, Omaha, Neb., for appellant.
    Thomas D. Thalken, Asst. U. S. Atty., Omaha, Neb., for appellee.
    Before GIBSON, Chief Judge, CLARK, Associate Justice, Retired, and WEBSTER, Circuit Judge.

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

   GIBSON, Chief Judge.

Michael Wiebold appeals his jury conviction of aiding and abetting, in violation of 18 U.S.C. § 2, the knowing and intentional possession of a controlled substance (LSD) with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). Four similar counts were dismissed by the trial court at the close of the Government’s case. The jury acquitted defendant on a count charging a conspiracy to possess and distribute LSD, and was unable to reach a verdict on two other counts on which a mistrial was declared. Defendant was sentenced under the Youth Corrections Act, 18 U.S.C. § 5010(b). .

Three assignments of error are made on appeal: (1) that the evidence was insufficient to support the jury’s verdict, (2) use of an “Allen” charge was prejudicial, and (3) it was an abuse of discretion to allow Hugh McGuire to testify as an expert.

In determining whether there was sufficient evidence to support the conviction we view the evidence in the light most favorable to sustaining the jury’s verdict, accept as established all reasonable inferences which tend to support the determination, and resolve any evidentiary conflict in favor of the verdict. United States v. Pecina, 501 F.2d 536 (8th Cir. 1974); United States v. Rauch, 491 F.2d 552 (8th Cir. 1974); United States v. Henson, 456 F.2d 1045 (8th Cir. 1972). However, before setting forth a summary of the evidence we find sufficient to sustain the conviction, we address the defendant’s fundamental misconception of what the Government was required to prove.

Defendant argues that the Government had to establish a prior agreement or arrangement between Nickels (the actual distributor of the drug) and himself to distribute LSD to support a conviction. This confuses the requirements of the Government’s proof on the conspiracy count (on which the jury acquitted defendant) with the proof necessary to establish “aiding and abetting” in violation of 18 U.S.C. § 2.

To establish aiding and abetting it is only necessary that the Government show “that a defendant ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed,’ ” Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949), quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938). “This means there must exist some affirmative participation which at least encourages the perpetrator.” United States v. Thomas, 469 F.2d 145, 147 (8th Cir. 1972).

We think the evidence is sufficient to establish defendant’s association and participation in the venture. The evidence showed that Wiebold acted as a supplier of LSD to Nickels. Nickels, occasionally accompanied by his companion-in-crime, Hoffarth, would travel to Denver, Colorado, where he would receive a quantity of LSD tablets from Wiebold. Nickels and Hoffarth would then sell the tablets in the Omaha, Nebraska, area, paying Wiebold for the tablets out of the proceeds of these sales. A money order received by Wiebold from Nickels as payment for one of these transactions was received into evidence, and this arrangement was further verified by the testimony of Wiebold’s girl friend at the time of these transactions, who on one occasion accompanied Wiebold, Nickels, and Hoffarth from Denver to Omaha with a supply of LSD tablets.

Whether the jury considered that Wie-bold was associated with Nickels in a joint venture or that he merely delivered the LSD on consignment, the evidence was sufficient to establish Wiebold’s knowing association and participation in Nickels’ possession of LSD with intent to distribute.

Defendant contends that the Allen charge given was prejudicial. After deliberating approximately five hours the jury sent a note to the trial judge which read: “Through long deliberations the jury is unable to arrive at a verdict. It appears that we will not completely agree.” The trial judge then called the jury back and gave them the challenged charge. After several more hours of deliberations the jury reported agreement on Counts I and IV but deadlocked on Counts II and III.

We have recognized the possibility of coercion presented by use of the “Allen” charge, but have approved its use as part of the original charge or as a supplemental charge. United States v. Skillman, 442 F.2d 542, 558-60 (8th Cir. 1971); Hodges v. United States, 408 F.2d 543, 552—54 (8th Cir. 1969). And, although frequently requested, we have declined to prohibit its use. United States v. Ringland, 497 F.2d 1250, 1253 (8th Cir. 1974); Hodges v. United States, supra 408 F.2d at 552. However, we have indicated a preference for giving the charge as a part of the regular instructions before a deadlock has occurred. United States v. Ringland, supra 497 F.2d at 1253; United States v. Skillman, supra 442 F.2d at 558-59. See also ÁBA Project on Standards for Criminal Justice, Standards Relating to Trial by Jury — Approved Draft § 5.4 (1968).

We find there was no prejudicial error in giving the complained of charge in this case. The verdict is indicative of a discriminating attention to the evidence rather than being a product of coercion. There was an acquittal on one count, the jury deadlocked on two counts even after receiving the “Allen” charge, and a verdict of guilty was reached on the other count. This does not appear to be the product of a jury rushed or coerced to a judgment of guilty.

We find no error in the admission of McGuire’s testimony. Ordinarily, the determination as to whether a person may be allowed to express his opinion as an expert is within the discretion of the trial court. United States v. Atkins, 473 F.2d 308, 313 (8th Cir. 1973). Defendant argues it was an abuse of discretion to allow McGuire, an admitted perjurer, to testify, relying upon Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956). In Mesarosh a key Government witness was represented to have committed various acts of perjury after trial in his testimony before various governmental investigative agencies. Realizing that this cast a question upon his veracity at trial, the Solicitor General requested the Supreme Court to remand the matter to the district court for a hearing to determine whether his trial testimony was truthful. Instead, finding that the witness had “poisoned the water in this reservoir,” the Supreme Court remanded for a new trial. Mesarosh, supra at 14, 77 S.Ct. at 8. Here, the poison of perjury by McGuire as to his academic degrees was admitted at trial and the antidote of cross-examination was available and used by the defendant. The jury was aware of the admitted perjury and could give what credibility and weight to McGuire’s testimony it thought it deserved. Further, no objection to this testimony was registered at time of trial and we do not believe admission of this testimony constituted plain error requiring reversal. Rule 52(b), Fed.R.Crim.P. _

The judgment of conviction is affirmed.

      . The charge given was almost identical to that set out in United States v. Ringland, 497 F.2d 1250, 1252-53 n. 1 (8th Cir. 1974). At the end of that instruction the trial court added the following:
      My instructions will be to you that I want you to go back in and continue your deliberations and do the very best job you can. If you can agree, do so, and if you cannot then let me know.