text:
    William Carl POST, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1887.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 11, 1974.
    Decided July 12, 1974.

      Asa A. Christensen, Lincoln, Neb., for appellant.
    Daniel E. Wherry, Asst. U. S. Atty., Omaha, Neb., for appellee.
    Before BRIGHT, STEPHENSON and WEBSTER, Circuit Judges.
   PER CURIAM.

William Carl Post, apparently an inveterate bank robber, appeals his conviction for the May 10, 1972, robbery of the Cornhusker Bank of Lincoln, Nebraska, and the imposition of a 15-year sentence to be served consecutively to other existing federal prison terms.

Appellant contends: (1) that the trial court unreasonably delayed sentencing him on the robbery charge following the guilty plea; (2) that the trial court relied on inaccurate information in the pre-sentence report; and (3) that the trial court imposed an excessive sentence upon him because it was made consecutive in nature. We affirm the conviction.

The resolution of these matters requires the recitation of some factual background. Within a five-month period in 1972, appellant committed a number of robberies in Michigan and Kentucky in addition to the Lincoln, Nebraska, caper. He was apprehended, tried for one of the robberies before a jury in federal court in Michigan, and convicted of armed robbery and possession of a sawed-off shotgun. He received a 25-year sentence for the robbery, and a concurrent ten-year sentence for possession of the illegal firearm. In federal court in Louisville, Kentucky, he pled guilty to two other counts of armed robbery, and the sentencing judge imposed 25-year concurrent sentences on each count to run concurrently with the previously-imposed sentences in Michigan. On Post’s return to Nebraska to face the bank robbery charges in the instant case, he pled guilty on August 14, 1973. That night, while being held in the County-City jail in Lincoln pending completion of the pre-sentence report, Post was involved in an attempted escape. This resulted in additional federal criminal charges for conspiracy and attempted escape. Post stood trial before a jury, which on November 21, 1973, found him guilty. Sentencing immediately followed on both the escape charge and the bank robbery charge. Chief Judge Warren K. Urbom of the District of Nebraska sentenced Post to five years on the escape charge, consecutive to the sentences imposed for the Michigan and Kentucky offenses, and 15 years additional and consecutive for .the armed robbery. Thus under all the charges described, Post faces a maximum of 45 years possible imprisonment.

Turning now to the issues on appeal, we think that Post’s contentions carry no merit. The delay between the guilty plea and sentence came about because of the intervention of the attempted escape and consequent prosecution for this incident. This postponement was not unusual, nor was Post prejudiced by the delay since the trial judge stated that the separate robbery in Nebraska called for a separate and additional prison sentence. See Brooks v. United States, 423 F.2d 1149 (8th Cir. 1970).

Post claims the delay prejudiced him because he lost two months time on the Michigan sentence while incarcerated in the Lincoln, Nebraska, jail. This record does not show whether or not Post will be administratively credited on his Michigan sentence for time spent awaiting trial and sentence on the Nebraska sentence. Nevertheless, the statute, 18 U.S.C. § 3568, makes clear that the Nebraska pre-sentence incarceration would not be dead time ’but must be credited in any event against the sentences imposed by Judge Urbom.

Post contends that the trial judge, in sentencing him, considered certain inaccurate information relating to earlier offenses contained in the pre-sentence report. This contention is not borne out by the record. Judge Urbom gave Post an opportunity to comment on the material in the pre-sentence report, a copy of which had been furnished to him through his attorney. Post did in fact call the court’s attention to an erroneous statement in the account of a robbery in California committed in 1964, which indicated that Post “was armed with a pistol.”

The record reveals that Judge Urbom received Post’s claims without comment on them, but queried Post specifically on his commission of the instant offense and the other bank robberies within a five-month period. The court said:

THE COURT: Mr. Post, I conclude that I must sentence you to a sentence which will run consecutively. My concern, I must simply and frankly tell you is that I see nothing except a five month spread of time which in any sense would connect this robbery with any other crime that you committed. And when a person decides to commit one crime, and another, and another, and so forth I have some hesitancy in permitting one sentence to do for all of them; and you need to feel some punishment for having robbed the bank here it seems to me. And if I simply imposed a new sentence which would run concurrently it seems to me that no punishment would really be visited upon you for this robbery, and I would be derelict in my duty if I permitted that to happen.

On this record, we must reject Post’s contention that the court relied on inaccurate data in assessing a total sentence of 20 years.

The sentencing record also requires us to reject Post’s further contention that the trial court’s sentence on the Nebraska armed robbery is excessive. In imposing the sentence, Judge Urbom did not abuse his discretion; rather he stated appropriate reasons for his action.

Affirmed.

      . Imposed under 18 U.S.C. § 4208 (a) (2), with parole eligibility at such time as the Board of Parole may determine.

      . Section 3568 reads in part:
      The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in conneetion with the offense or acts for which sentence was imposed.


source: Caselaw Access Project

author: BUTZNER, Circuit Judge:

license: Public Domain

text:
    King HAIRSTON, Appellee, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Appellant.
    No. 73-2216.
    United States Court of Appeals, Fourth Circuit.
    Argued June 4, 1974.
    Decided July 3, 1974.

      Robert E. Shepherd, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen. of Virginia, on brief), for appellant.
    Gordon M. Kent, Altavista, Va. [court-appointed counsel] (Kent & Kent, Altavista, Va., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL, FIELD and WIDENER, Circuit Judges, sitting in banc.
   BUTZNER, Circuit Judge:

The sole issue presented by this appeal is whether a Virginia prisoner, King Hairston, is entitled to a writ of habeas corpus on the basis of his complaint that black persons were systematically excluded from his grand and petit juries in 1942. Hairston did not raise this issue at his trial. He initially alleged it in his state habeas proceeding. We previously found that Hairston had established a prima facie case of systematic exclusion, and we remanded the case for an evidentiary hearing to afford the state the opportunity to present rebuttal evidence. The district court then ruled that Hairston was entitled to the writ, and a panel of this court affirmed on the opinion of the district court.

We subsequently withdrew the panel decision, and reheard the .case in banc to determine whether McNeil v. North Carolina, 368 F.2d 313 (4th Cir. 1966), should be overruled because of two recent decisions of the Supreme Court, Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), and Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). In McNeil, we held that a prisoner who had not complied with state law by challenging the jury before his plea was not barred by the state rule of waiver from raising the issue of systematic exclusion in collateral proceedings. In contrast to McNeil, the Supreme Court held in Davis that a federal prisoner waives objection to the composition of the grand jury if he does not raise the issue before entry of his plea as required by Federal Rule of Criminal Procedure 12(b)(2). Of course, pursuant to the rule, a court may grant relief from the waiver. In Tollett, the Court held that a state prisoner who pleaded guilty could not attack the composition of the grand jury in a collateral proceeding. However, the Court reiterated that it was still an open question whether systematic racial exclusion in the selection of a grand jury could be raised in a federal habeas corpus action after trial on a plea of not guilty. 411 U.S. 260 n.1, 93 S.Ct. 1602. Thus, the issue posed by McNeil has not yet been definitively decided by the Supreme Court, but at least one intermediate court has found an apt analogy in Davis. See, e. g., Rivera v. Wainwright, 488 F.2d 275 (5th Cir. 1974).

During the course of the in banc hearing, it became apparent that the state habeas court had considered the merits of Hairston’s allegation and that it had not relied on the waiver mandated by the Virginia statute which dealt with challenges to juries at the time of Hair-ston’s trial. In this posture of the case, the constitutionality of the composition of the jury is before us as a litigable issue. Cf. Coleman v. Alabama, 377 U.S. 129, 84 S.Ct. 1152, 12 L.Ed.2d 190 (1964). The appeal, therefore, presents an inappropriate occasion for reconsidering McNeil, and we reserve the question of its viability for another day.

On the merits of Hairston’s claim, the district judge’s finding of facts and application of law are unassailable. Accordingly, the judgment is affirmed.

      . Hairston v. Cox, 459 F.2d 1382 (4th Cir. 1972), cert. denied, 411 U.S. 986, 93 S.Ct. 2266, 36 L.Ed.2d 963 (1973).

      . Hairston v. Cox, 361 F.Supp. 1180 (W.D.Va. 1973).

      . Hairston v. Cox, No. 73-2216 (4th Cir., March 20, 1974) (opinion withdrawn).

      . Accord, Parker v. Boss, 470 F.2d 1092 (4th Cir. 1972).

      . Virginia Code Ann. §§ 4895, 6002 (1936). Virginia’s Rules of Criminal Practice and Procedure, which became effective January 1, 1972, incorporate many provisions of the Federal Rules of Criminal Procedure. The provisions of Virginia Rule 3A:12 (c)(2) and (3) pertaining to motions before trial, waiver of objections, and relief from waiver are substantially similar to Federal Rule 12(b)(2).


author: LAY, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. John Henry LEE, Appellant.
    No. 74-1029.
    United States Court of Appeals, Eighth Circuit.
    July 18, 1974.
    Certiorari Denied Nov. 11, 1974.
    See 95 S.Ct. 322.

      D. R. Busick, Fraser, Stryker, Veach, Vaughn & Meusey, Omaha, Neb., for appellant.
    William K. Schaphorst, U. S. Atty., and Thomas C. Thalken, Asst. U. S. Atty., Omaha, Neb., for appellee.
    Before GIBSON, LAY and STEPHENSON, Circuit Judges.
   LAY, Circuit Judge.

Defendant John Henry Lee pleaded guilty to one count of knowingly and intentionally distributing heroin in violation of 21 U.S.C. §-841(a)(1). At the time of his plea, he was serving a ten-year sentence in the state of Iowa for an unrelated offense. The federal district court sentenced him to five years in prison to be followed by a special parole term of three years. The court directed that the federal term run consecutive to the state sentence. Thereafter, the defendant moved pro se to vacate his federal sentence. The district court considered his petition under 28 U.S.C. § 2255 and alternatively under Rule 35 Fed.R. Crim.P. and denied relief. The defendant thereafter filed this appeal.

The defendant alleges through newly appointed counsel on appeal (1) that he was denied a speedy trial, (2) that he was improperly denied an evidentiary hearing in the district court on his allegation of ineffective assistance of counsel, and (3) that the district court abused its discretion by refusing to sentence the defendant to a term to . be served concurrent with his Iowa sentence. We deem the appeal frivolous and affirm the order of the district court.

The defendant did not raise the alleged denial of his right to a speedy trial in his motion for post-conviction relief and that question would ordinarily not be entertained in the first instance by this court on appeal. However, to avoid the processing of another frivolous petition, we choose to pass on the claim here. The law is clear that the defendant’s guilty plea waived all non-jurisdictional defects, including the alleged denial of a speedy trial. Becker v. State, 435 F.2d 157 (8th Cir. 1970), cert. denied, 402 U.S. 981, 91 S.Ct. 1684, 29 L.Ed.2d 145 (1971); Pate v. United States, 297 F.2d 166 (8th Cir.), cert. denied, 370 U.S. 928, 82 S.Ct. 1569, 8 L.Ed.2d 507 (1962). Even if this were not so, defendant’s claim is based solely on the fact that there was a A\/2 month delay from the time of indictment to the time of his removal from state custody to federal custody for trial on the federal charge. No actual prejudice is shown to have resulted from this delay. More than the passage of time must be shown under these circumstances.

The district court properly denied the defendant’s request for an evidentiary hearing on defendant’s conclusory allegation that he was denied effective assistance of counsel. Before such a hearing is required, it is necessary to allege facts which, if true, would entitle the petitioner to relief. See Procunier v. Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971). Here, the defendant stated mere conclusions totally unsupported by the records and files of the case and a hearing was not required. Poole v. United States, 438 F.2d 325 (8th Cir. 1971); Cardarella v. United States, 375 F.2d 222 (8th Cir. 1967).

Defendant’s pro se motion was primarily motivated by his dissatisfaction with the district court’s judgment that the sentence imposed commence after defendant’s state incarceration. It was clearly within the discretion of the district court to impose such a sentence. Truesdell v. United States, 400 F.2d 859 (8th Cir. 1968); Pegram v. United States, 361 F.2d 820 (8th Cir. 1966).

Moreover, had the district court announced that the sentence imposed was to run concurrently with defendant’s state sentence, this would have served only as a recommendation. It would have had no binding effect on the Attorney General, who, alone, , is given the right to designate where a sentence is to be served. 18 U.S.C. § 4082(a); Hash v. Henderson, 385 F.2d 475 (8th Cir. 1967).

Counsel also argues that the federal detainer now placed on the defendant will deprive him of rehabilitative opportunities while in the Iowa penitentiary. The alleged deleterious effects of a detainer upon a prisoner’s custody, however, should be addressed to the authority having custody, not the one requesting it. Cf. Cooper v. Lockhart, 489 F.2d 308 (8th Cir. 1973).

Judgment affirmed.

      . The maximum penalty which could have been imposed upon the defendant was a prison term of not more than 15 years and a fine of not more than $25,000, or both. 21 U.S.C. § 841(b)(1)(A). The three-year special parole term was required by 21 U.S. C. § 841(b)(1) (A).


author: SETH, Circuit Judge.

text:
    GRAND CANYON DORRIES, INC., et al., Appellants, v. Ronald H. WALKER, Director, National Park Service, et al., Appellees.
    No. 73-1853.
    United States Court of Appeals, Tenth Circuit.
    Aug. 20, 1974.

      Constance K. Lundberg, Salt Lake City, Utah (Owen Olpin, Salt Lake City, Utah, with her on the brief), for appellants.
    Robert L. Klarquist, Atty., Dept, of Justice, Washington, D. C. (Wallace H. Johnson, Asst. Atty. Gen., C. Nelson Day, U. S. Atty., and George R. Hyde, Atty., Dept, of Justice, with him on the brief), for appellees.
    Before SETH and HOLLOWAY, Circuit Judges, and TALBOT SMITH, District Judge.

       Of the Eastern District of Michigan, sitting by designation.

   SETH, Circuit Judge.

The several appellants are operators of commercial float trips on the Colorado River below Glen Canyon Dam. They appeal the dismissal of their action for declaratory and injunctive relief against the Secretary of the Interior and various named officials of the Bureau of Reclamation and the National Park Service. The gist of their complaint is that the ongoing operation of Glen Canyon Dam and particularly the intermittent reductions in the volume of water released below the dam interfere with the safe conduct of the plaintiffs’ float trips. Such interference is claimed to be a continuing breach of the contractual rights allegedly implied in the concession licenses which the plaintiffs have been granted by the National Park Service. The plaintiffs’ more serious contention, however, is that the continuing operation of Glen Canyon Dam is a major federal action “significantly affecting the quality of the human environment,” and therefore the National Environmental Policy Act (NEPA) requires the preparation of a detailed environmental impact statement. 42 U.S. C. § 4321 et seq.

Considering the contractual claims first, we find that the plaintiffs are in effect seeking specific performance of the Government’s alleged obligations. Even if it were assumed that such obligations do arise from the plaintiffs’ concession licenses, the court could not grant the relief requested. As we remarked in National Helium Corp. v. Morton, 486 F.2d 995 (10th Cir.):

“We have fully considered the Supreme Court cases which prohibit in-junctive relief against governmental officers on account of their upholding the rights of the government arising under a contract. Such a suit is distinguished by the Supreme Court from actions seeking compensation for an alleged wrong and are regarded as actions against the sovereign to which there has not been consent.”

Injunctive relief against the Government is not available in a contract action such as this, and the plaintiffs’ remedy lies in an action for damages before the appropriate tribunal. See Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628.

The potential application of NEPA to the ongoing operation of a dam planned and constructed prior to passage of the Act could be a substantial issue, but it is not properly before us.

It is readily apparent that both NEPA and the Guidelines promulgated thereunder rely heavily on agency action to achieve their stated objectives. While the action itself is mandatory, the considerations and objectives are stated only in general terms. Thus it is also apparent that great reliance is placed on the proper exercise of administrative discretion and the good faith efforts of each agency. For this reason the agencies are given latitude in weighing the environmental factors to be considered in their decisions. As the provisions in the Guidelines and the Departmental Manual illustrate, this latitude exists also with respect to projects undertaken before passage of the Act.

It is obvious that the subject of the retroactive application of NEPA is not a matter entirely within agency discretion. What we do recognize is that the matter must be determined in the first instance by the agency undertaking or operating the project. It is precisely this administrative determination which has not been made in this case, and for this reason the basic issue is not presented, and we must affirm the dismissal.

In reviewing the record we find neither allegation nor evidence therein that the Department of the Interior or any of its subordinate agencies has ever considered, let alone decided, whether NEPA applies to the continuing operation of Glen Canyon Dam. Nor is there allegation or evidence that the plaintiffs have requested the Department to consider the question. During oral argument the plaintiffs alluded to a number of informal conversations with various Department officials. Even if the record were to reflect these conversations, they would still be insufficient to establish the Department’s position.

At this point the court and even the plaintiffs can only speculate at the position the Department might ultimately take. It is possible that after reviewing the situation the Department might decide that an impact statement is feasible and necessary, and that it is practicable to comply fully with section 102. On the other hand, it may decide that by this time it would be unreasonable and impracticable to reconsider the operation. In any event whatever course the Department takes, judicial review must await its action. It is the Department which must in the first instance assemble and weigh the factors relevant to whether and how NEPA should be applied to the operation of the dam. Only when it has exercised the broad discretion conferred by the Act and the Guidelines will the issues be ripe for judicial determination.

We have considered the cases arising under NEPA in this Circuit and many of those arising in other Circuits. In every instance there is specific agency action or a decision that has been the subject for review, even if it was only a determination that the particular action was not subject to the requirements of NEPA. See, for example, Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244 (10th Cir.). We have no such action or decision before us to review in this case.

The problem before us can appropriately be characterized as one of ripeness. We believe this case closely parallels those in which the agency action for which review is sought is not sufficiently formalized to be appropriately considered by the courts. The Supreme Court expressed the controlling considerations in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681:

“Without undertaking to survey the intricacies of the ripeness doctrine it is fair to .say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.”

Although the facts of this case differ substantially from those in Abbott Laboratories, the considerations set forth therein apply equally well here. Judicial action at this point, without a decision by the Department whether NEPA will be applied, would be premature and would perhaps frustrate the very purposes of the Act. The opportunity should be first afforded the Department to utilize the procedures set forth in its departmental manual, and to make its initial independent determination of the extent to which NEPA should be applied. Until that determination has been made, or the Department has in some formalized manner indicated its refusal to make it, the case is inappropriate for judicial consideration.

Affirmed.


author: PER CURIAM:

text:
    Wade H. TEMPLE, Jr., Plaintiff-Appellant, v. John F. BUSHELL, as Postmaster of Oakland, California, et al., Defendants-Appellees. Terry M. FRANCOIS, Plaintiff-Appellant, v. John F. BUSHELL, as Postmaster of Oakland, California, et al., Defendants-Appellees.
    Nos. 71-1834, 71-2135.
    United States Court of Appeals, Ninth Circuit.
    July 1, 1974.
    Clifford C. Sweet, Legal Aid Society, Alameda County, Oakland, Cal., for plaintiffs-appellants.
    James Browning, Jr., U. S. Atty., San Francisco, Cal., William Kanter and Alan S. Rosenthal, Dept, of Justice, Washington, D.C., for defendants-appel-lees.
    Before DUNIWAY and KILKENNY, Circuit Judges, and SMITH, District Judge.

       The Honorable Russell Smith, Chief Judge, United States District Court for the District of Montana, sitting by designation.

   OPINION

PER CURIAM:

Each of the appellants in these two cases was summarily suspended from his job by appellees pending an administrative determination as to whether he should be permanently removed from the postal service. Neither appellant sought to exhaust his available administrative remedies. Instead, each independently brought suit in district court to enjoin his suspension pending a full administrative hearing, alleging that the due process clause of the Fifth Amendment requires a pre-suspension administrative hearing.

In Temple’s case, the trial court denied his motion for a preliminary injunction and dismissed his action for lack of jurisdiction on the ground that he had failed to exhaust his administrative remedies. In Francois v. Bushell, 325 F.Supp. 531 (N.D.Cal.1971), the trial court concluded that Francois was not required to exhaust his administrative remedies, but it upheld the constitutionality of the summary suspension without a hearing. These appeals followed, and this court granted appellants’ motion to consolidate the actions on appeal.

The Supreme Court in Arnett v. Kennedy, 1974, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15, directly addressed and rejected appellants’ constitutional arguments. There is no need, therefore, to resolve the exhaustion of remedies question.

The judgments are affirmed.


author: PER CURIAM: WALLACE, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Victor GRIJALVA-CARRERA, Appellant.
    No. 72-2349.
    United States Court of Appeals, Ninth Circuit.
    June 14, 1974.
    Thomas C. Kleinschmidt, Federal Public Defender (argued), Tom Karas, Federal Public Defender, Phoenix, Ariz., for appellant.
    Alice A. Wright, Asst. U. S. Atty. (argued), Patricia Whitehead, Asst. U. S. Atty. (appeared), William C. Smith-erman, U. S. Atty., Phoenix, Ariz., for appellee.
    Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, and SNEED, Circuit Judges.
   OPINION

PER CURIAM:

The only issue in this appeal is whether evidence discovered by a border-patrol agent during the course of a routine immigration search on U. S. Highway 95 north of Yuma, Arizona, must be suppressed.

In United States v. Peltier, 500 F.2d 985 (9th Cir., 1974) (en bane), we hold that the rule announced by the Supreme Court in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), applied retroactively to all cases involving roving-patrol searches which were pending on appeal at the time that Almeida-Sanchez was announced. However, in United States v. Bowen, 500 F.2d 960 (9th Cir., 1974) (en 'banc), we also held that, although searches by border-patrol agents at fixed checkpoints violated the Fourth Amendment, Almeida-Sanchez would not be applied retroactively to fixed-checkpoint searches conducted prior to the date of decision of Almeida-Sanchez.

The search of Grijalva-Carrera’s car was conducted before the decision of Al-meida-Sanchez was announced. The controlling question is whether or not the search here was more like a roving-patrol issue than a fixed-checkpoint search. We hold that it was, and reverse.

At the hearing on the motion to suppress, the arresting officer testified that he had instructions to stop all vehicles traveling north after dark on Highway 95. His car was parked alongside the road where he could turn on its lights and observe the occupants of a vehicle which passed. There was no roadblock of any kind, and the record does not indicate that there were any signs, warning light, or other indications of a border-patrol facility. Flagging a motorist to the side of the road at an unmarked, unlighted location on a desolate highway is more characteristic of a roving-patrol search than of a fixed-checkpoint search. See generally United States v. Bowen, 500 F.2d at 963-964.

Reversed.

WALLACE, Circuit Judge

(concurring) :

I concur. As this case involves a roving patrol search, United States v. Peltier, 500 F.2d 985 (9th Cir. 1974) (en banc) governs and reversal is appropriate. This search does not qualify as occurring at a temporary checkpoint. As stated in United States v. Baca, 368 F.Supp. 398, 406-407 (S.D.Cal.1973):

Other traffic checkpoints, known as “temporary checkpoints” are maintained on roads where traffic is less frequent. The placement of these sites will be governed by the same safety factors as involved in permanent site placement and are usually located where the terrain allows an element of surprise. Operations at these temporary checkpoints are set up at irregular intervals and intermittently so as to confuse the potential violater. Handbook at 9-3..
When the checkpoints, whether permanent or temporary, are in operation, an officer standing at the “point” in full dress uniform on the highway will view the decelerating oncoming vehicles and their passengers, and will visually determine whether he has reason to believe the occupants of the vehicle are aliens (i. e., “breaks the pattern” of usual traffic).
In actual operation the checkpoints, be they “permanent” or “temporary,” have the same basic accouterments. Typically, about one-half mile to one mile south of the checkpoint is the first notification that the checkpoint is ahead. The notice is in the form of a black on yellow sign indicated “STOP AHEAD” which has floodr lights for nighttime illumination, Handbook at 9-9. Next, about 200 yards from the checkpoint is another sign cautioning. the traffic to slow down or to be careful; this sign usually has flashing yellow lights attached. For the 50 yards directly south of the checkpoint there are placed traffic cones evenly spaced along each side of the highway. The actual checkpoint has a sign indicating to the traffic to stop, with official Border Patrol vehicles parked on each side of stop zone showing the official Border Patrol emblem and/or the designation U. S. OFFICERS. At this point the agents assigned to the “point,” in their official uniform, conduct checking and inspection operations. Beyond the checkpoint is usually a sign indicating “THANK YOU.”

I agree with Justice Powell that the Almeida-Sanchez roving patrol search case does not “involve the constitutional propriety of searches at permanent or temporary checkpoints.” Almeida-San-chez v. United States, 413 U.S. 266, 276, 93 S.Ct. 2535, 2541, 37 L.Ed.2d 596 (1973) (emphasis added). A search at a temporary checkpoint is significantly different from one evolving from a roving patrol and is similar to a search at a permanent checkpoint.

Had this been a search at a temporary checkpoint, my vote would be different as I believe the retroactivity issue would be governed by United States v. Bowen, 500 F.2d 960 (9th Cir. 1974) (en banc).


author: EAST, Senior District Judge:

text:
    The UNITED STATES of America, Plaintiff-Appellee, v. NU-TRIUMPH, INC., a Calif. corp., Defendant-Appellant.
    No. 74-1028.
    United States Court of Appeals, Ninth Circuit.
    July 5, 1974.
    Rehearing Denied Aug. 29, 1974.

      Burton Marks (argued), Beverly Hills, Cal., for defendant-appellant.
    Mark O. Heaney, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.
    Before CHAMBERS and ELY, Circuit Judges, and EAST,  Senior District Judge.

       Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation.

   OPINION

EAST, Senior District Judge:

Maurice J. Pastor, acting as president of the appellant (Corporation) and on its behalf, appeared personally and with chosen counsel, and, with the record approval and joinder of counsel, entered the Corporation’s plea of guilty to a single charge of mailing certain obscene material in violation of 18 U.S.C. § 1461. The Corporation was sentenced to pay a fine of $5,000, with the suspension of the payment of the remainder of $3,000 and probation for a period of three years, upon the condition, inter alia, that the Corporation “not engage in the distribution of pornographic material.” Whereupon, additional counts in the indictment relating to the subject of obscene material against Pastor individually and the Corporation were dismissed on motion of the government.

Thereafter, the Corporation was charged with violation of the condition and ordered to show cause why the probation should not be revoked. The district court denied various intervening Rule 35, Federal Rules of Criminal Procedure, motions and following an eviden-tiary hearing, found the Corporation in violation of the condition of probation and ordered the payment of $1,500 upon the suspended fine of $3,000 and continued the probation on modified terms which are not involved in this appeal.

The Corporation appeals from the orders denying the Rule 35 motions and the judgment of sentence to pay the additional sum of $1,500 upon the original fine. We affirm.

The Corporation asserts four specifications of error. While not specifically spelled out in any of the four specifications, there is running throughout the Corporation’s attack upon the condition the veiled claim of ambiguity and vagueness in the phrase “pornographic matter.” Such a claim falls flat in the face of counsel’s stipulation at the revocation hearing, reading: “That the Corporation distributed material which was pornographic and, by definition, therefore, dealt with sexual matters.” Furthermore, Pastor was not a figurehead president, but rather he was the fountainhead and big wheel in the distribution business and affairs of the Corporation. Counsel appearing for the Corporation and Pastor, individually, jointly indicted, at the time of the entry of the Corporation’s guilty plea advised the court with reference to Pastor as follows: “[m]y client and I have thoroughly explored this. He understands the nature of his guilty plea and also the maximum sentence. He also understands that in an obscenity case involving materials with some sexual overtones — " and further, “[h]e recognizes, your Honor, that in connection with a jury trial that there is a possibility, perhaps even a likelihood, that a jury could find him guilty.” It is of importance to note that this advice to the court was given following a lengthy discussion on the financial status and ability of the Corporation to pay a substantial fine. Pastor, with his familiarity with and knowledge of what type of material is and is not proscribed as obscene by § 1461, bargained for and traded the Corporation’s plea of guilty for the dismissal of three counts against himself and two against the Corporation.

The challenged condition of probation is not a general proscription of conduct on the part of the general public, but on the contrary, a proscription of specific future conduct on the part of the Corporation as guided by Pastor, and related to past knowledgeable conduct.

The Corporation’s claim of vagueness and uncertainty in the phraseology of the condition and that its guiding hand did not have reasonable means to know that the distribution of materials with some sexual overtones was proscribed by the condition is specious.

We are satisfied that three of the specifications are utterly without merit; however, specification “2. Does the condition of probation, which Appellant has allegedly violated constitute an impermissible prior restraint upon presumptively protected activities under the First Amendment?” warrants concern.

The condition did not proscribe the distribution of obscene matter, which phrase in and of itself does lack specificity, Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), but to the contrary, only a specific class of related matter in the printed media, namely: “[dealing] in sexual matters.” Trafficking in judicially or legislatively specified obscene printed material is a crime under both federal and state laws and such is not protected as a freedom under the First Amendment. Pornographic printed matter, on the other hand, is not necessarily or per se unlawful matter. Depending upon the appropriate test, a given piece of pornographic matter or picture may or may not be proscribed obscene matter. Accordingly, the condition of the probation does tend to impinge upon the Corporation’s freedom under the First Amendment. Suffice to say, all conditions of probation by the very nature of the concept of probation do impinge upon a person’s constitutional freedoms, albeit, to a lesser degree than under a prison sentence. The Corporation’s immunity from a prison sentence is a distinction without meaning in law or rational consequence.

We hold that the condition of probation imposing some restriction on the Corporation’s First Amendment liberties does not impermissibly impinge the Corporation’s freedom under the First Amendment. Morrissey v. Brewer, 408 U.S. 471, 478, 92 S.Ct. 2593, 2598, 33 L.Ed.2d 484 (1972), and United States v. Kohlberg, 472 F.2d 1189 (CA9 1973).

The granting of a sentence of probation in lieu of custody or fine in the first instance as well as the terms and conditions of the probation granted rests within the sound discretion of the sentencing district court, Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932), and Kohlberg, supra; and such judicial discretion in probation matters is limited only by the requirement that the terms and conditions thereof bear “a reasonable relationship to the treatment of the accused and the protection of the public.” Forth v. Templar, 453 F.2d 330, 333 (CA10 1971).

It must be manifest to all that the intent of the district court in granting any probationary term at all was to rehabilitate the Corporation’s activities and to protect the public from future commissions of crime by the Corporation in the field of unlawful obscene printed media. It would be difficult to imagine a more reasonable relationship between the condition and (a) the treatment of the Corporation in allowing it to return to the street and distribute printed media, except for dirty pictures, likened to a restraint of association with former confederates in crime or other groups likely to lead to crime on the part of the Corporation; and (b) protection of the public from future crime on the part of the Corporation.

We hold the district court did not abuse its discretion in fixing and imposing the condition upon the Corporation’s probation. Kohlberg, supra, 472 F.2d at 1190, and Whaley v. United States, 324 F.2d 356 (CA9 1963).

Affirmed.


author: PER CURIAM.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRIANGLE PUBLICATIONS, INC., Respondent. TRIANGLE PUBLICATIONS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    Nos. 73-1791 and 73-1853.
    United States Court of Appeals, Third Circuit.
    Argued May 29, 1974.
    Decided June 28,1974.
    As Amended July 26, 1974.
    Allison W. Brown, Jr., David S. Fish-back, Peter G. Nash, John S. Irving, Patrick H. Hardin, Elliott Moore, Washington, D. C., for National Labor Relations Board.
    Edward N. Schwartz, Maplewood, N. J., for Triangle Publications, Inc.
    Before ROSENN and HUNTER, Circuit Judges, and HANNUM, District Judge.
   OPINION OF THE COURT

PER CURIAM.

This case is before the court on the application of the National Labor Relations Board for enforcement of its order, issued June 29, 1973, against Triangle Publications, Inc. (the Company) and on a cross-petition for review of the Board’s order filed by the Company. The question presented is whether substantial evidence on the record as a whole supports the Board’s conclusion that the Company violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 . U.S.C. § 158(a)(1), (3) (1970). We have concluded that there is substantial evidence to support the Board’s decision and that its order should be enforced in full.

The § 8(a)(1) violation is based upon an incident involving Friedlander, an employee of the Company, and Gross-man, who at all relevant times was in charge of the Hightstown plant where Friedlander was employed. On February 3, 1972 Friedlander spent a part of the work day collecting the names and addresses of his co-workers so that a union could get in touch with them. Later in the day, a conversation occurred between Friedlander and Grossman, and, according to Friedlander, a second conversation occurred on the following day.

It is the nature of Grossman’s comments during these discussions, as found by the Administrative Law Judge and adopted by the Board, that form the basis for the § 8(a)(1) violation. These findings are as follows:

“[Friedlander] was asked by Gross-man why he was collecting [the names]. . . . When Friedlander admitted he was taking them for the use of the [union] . . . Gross-man questioned the wisdom of such action and told him Flood [the production manager] was furious about it. The next day Grossman called him into his office and asked him just what he had done and what good he thought it would do him.”

On the basis of these facts the Administrative Law Judge drew this conclusion:

“I find the interrogation on these two occasions, accompanied by Gross-man’s clear indication that it was not a smart thing to do and his statement that Jack Flood was furious about it, sufficient to make the interrogation coercive and to imply reprisals might be taken against Friedlander for his activity.”

The Company attacks the findings and conclusion in two ways. First, it claims the record as a whole lacks substantial evidence to support the findings of fact. We cannot agree. While it is true that the Administrative Law Judge essentially accepted Friedlander’s recollection of the conversations and rejected Gross-man’s we do not find this objectionable. Since both Grossman and Friedlander had a motive for lying, and since neither told an inherently incredible story, the judge was making a reasonable credibility determination when he chose to credit Friedlander’s account. We cannot overturn his findings of fact.

The Company’s second contention is that- even if we accept the facts as found by the Administrative Law Judge, they do not constitute a violation of § 8(a)(1). We reject this contention as well.

In Local 542, Int’l Union of Operating Eng. v. N.L.R.B., 328 F.2d 850 (3d Cir. 1964), this Court outlined the following test for determining whether a violation has occurred:

“That nó one was in fact coerced or intimidated is of no relevance. The test of coercion and intimidation is not whether the misconduct proves effective. The test is whether the misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.” Id. at 852-853.

In addition, our precedent indicates that we must defer to the Board’s superior expertise when we review its determinations on this issue.

“As the economic dependence of employees on their employer may cause them to be peculiarly sensitive to nuances in language which would be lost on a neutral observer, the possibility that a statement contains an implied threat must be judged from the employee’s point of view. For that reason the expertise of the Board is particularly relevant to the determination of whether a latent threat lies hidden in the words of an employer. Our scope of review is limited to inquiry as to whether the Board’s determination is reasonable and supported by substantial evidence.” Mon River Towing, Inc. v. N.L.R.B., 421 F.2d 1, 9-10 (3d Cir.1969) (footnotes omitted).

When judged by these standards we cannot find that the Administrative Law Judge was unreasonable when he concluded that coercion and the threat of reprisal were implicit in Grossman’s words when he questioned the wisdom of Friedlander’s activity and when he told him that the production manager was furious. The words themselves seem reasonably calculated to convey a threat of reprisal when directed to an empoyee. In addition, the reasonableness of this conclusion is buttressed by other facts in the record, particularly Friedlander’s forced transfer from the Hightstown plant soon after the incident. Thus, the facts as found by the Administrative Law Judge provide a sufficient basis for the finding of a § 8(a) (1) violation.

We are also of the view that there is substantial evidence on the record as a whole to support the Board’s finding of a § 8(a)(3) violation. Since the facts giving rise to this violation are adequately covered in the opinions of the Administrative Law Judge and the Board, we affirm on this basis of those opinions. See 204 N.L.R.B. No. 108 (1973).

The petition to set aside the order of the Board will be denied and the order will be enforced in full.

Judge Rosenn dissents as to the § 8(a)(1) charge only, because he is of the opinion that there is not substantial evidence on the record to support the Board’s finding that the respondent, Triangle Publications, Inc., violated Section 8(a) (1) of the Act.

      . The Company’s brief also suggests the back pay order made as a result of these violations should be “limited to the date of February 15, 1972 or to April 2, 1972” insofar as it relates to Jesse Friedlander. This claim is without merit.

      . This was a new plant and was not yet organized. However, the union involved had represented the Company’s employees at its New York plant for many years and Fried-lander’s involvement with the union was well known.

      . Grossman was a Company employee of twenty-three years standing at the time he testified. Appendix page 140.


author: VAN OOSTERHOUT, Senior Circuit Judge.

text:
    Alonzo PERRY, Appellant, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Appellee. Ariel Nicholas ARENADO, Appellant, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Appellee.
    Nos. 74-1123, 73-1847.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 15, 1974.
    Decided July 23, 1974.

      Raymond C. Conrad, Jr., Springfield, Mo., for appellant.
    Anthony P. Nugent, Jr., Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITII, Senior District Judge, Eastern District of Michigan, sitting by designation.

   VAN OOSTERHOUT, Senior Circuit Judge.

Petitioners Perry and Arenado have taken timely appeals from orders of the district court denying that portion of their petitions for habeas corpus wherein they seek relief in the form of having their eligibility for parole established. The dispositive issue presented by these consolidated appeals is whether narcotic offenders sentenced pursuant to 26 U.S. C. § 7237(d) to mandatory minimum terms not subject to parole are made eligible for parole by the repeal of § 7237(d) by the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1292, effective May 1, 1971.

The Supreme Court in Warden v. Marrero,-U.S.-, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974), has resolved the conflict heretofore existing among the circuits on this issue. The Supreme Court clearly held that with respect to sentences imposed prior to May 1, 1971, the parole prohibitions of 26 U.S.C. § 7237(d) remain operative and effective. For reasons fully set out and explained in its opinion, the Supreme Court held that § 1103(a) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 and 1 U.S.C. § 109 require such result.

Arenado was convicted by a jury on a charge of violating 26 U.S.C. § 4705(a) and sentenced to ten-years imprisonment on June 5, 1969. His conviction on such charge was affirmed. United States v. Vigo (Arenado), 435 F.2d 1347, 1352 (5th Cir. 1970).

Perry, upon a plea of guilty, was sentenced on November 30, 1971, to five-years imprisonment for violation of 21 U.S.C. § 174, for a crime committed prior to May 1, 1971.

Section 7237(d) makes parole unavailable to persons convicted under certain statutes including 26 U.S.C. § 4705(a) and 21 U.S.C. § 174. The trial court in Perry denied availability for parole upon the basis that such issue had not been properly raised. In Arenado the court in its opinion determined that under the law in this circuit petitioner’s claim for a right to release on parole must be denied. The court in the course of its opinion called attention to the conflicting authorities on the issue here under consideration and required that petitioner be aided in filing application for reconsideration of parole “until the Court of Appeals for the Eighth Circuit or the United States Supreme Court determines petitioner cannot be considered eligible for' parole.” The petition was denied in all other respects. The provisions permitting petitioners to continue to apply for parole were no doubt due to the conflict among the circuits on this issue. Such conflicting authorities are set out in footnote 7 of Marrero.

Under the clear holding of Marrero neither petitioner is entitled to consideration for parole. Parole as to them is barred by § 7237(d). The trial court dismissed each petition to the extent it sought to have parole eligibility favorably determined. In light of the Supreme Court’s holding in Marrero, the judgment of the trial court in each of the cases before us is modified to reflect that the cases are dismissed on the ground that the record conclusively shows that the petitioners are not entitled to consideration for parole, and as so modified, the judgments are affirmed.

      . The trial court in each case ordered the warden to provide petitioner with requisite forms for application for consideration or reconsideration for parole and to render assistance in preparing, mailing and filing such applications. The warden has complied with such order. No appeal has been taken from this part of the order.


author: BIGGS, Circuit Judge. SEITZ, Chief Judge

text:
    CROMAGLASS CORPORATION, Williamsport, Pa. (a Pennsylvania corporation), Appellant, v. Carl FERM et al.
    No. 72-1815.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 13, 1973.
    Submitted en banc April 11, 1974.
    Decided July 18, 1974.
    As Amended Aug. 1, 1974.

      John C. Youngman, Jr., Candor, Youngman, Gibson & Gault, Williams-port, Pa., William H. Pattison, Jr., Pat-tison, Wright & Pattison, Bethesda, Md., for appellant.
    Nathaniel A. Humphries, Peter N. Lalos, Mason, Fenwick & Lawrence, Washington, D. C., for appellees.
    Argued Sept. 13, 1973.
    Before BIGGS, ADAMS and RO-SENN, Circuit Judges.
    Submitted en banc April 11, 1974.
    Before SEITZ, Chief Judge, and BIGGS, VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.
   OPINION OF THE COURT

BIGGS, Circuit Judge.

This ease presents the issue of appeal-ability of sanctions imposed by the district judge for failure to comply with discovery orders. The original jurisdiction is stated in the complaint to be as follows: “This Court has jurisdiction of the claim of plaintiff for relief which involves damages in excess of Ten Thousand Dollars ($10,000.00); and which arises under the laws of the United States, to wit: Title 35, U.S.Code, Sections 281-287, 289 and 292; and Title 28, Sections 1331, 1338 and 1355.”

Plaintiff-appellant Cromaglass Corporation (Cromaglass) sued the defendant-appellees, Ferm, Sechler, and Plast-A-Form Corporation alleging patent infringement, false marking,' and unfair competition, in relation to the manufacture and sale of aerobic household sewage treatment units. The district court concluded on defendants’ motion that Cromaglass’ alleged failure to answer certain interrogatories warranted imposition of sanctions against it and ordered that a number of facts be taken as established, in favor of the defendants, in accordance with Rule 37(b)(2)(A) and that Cromaglass be precluded from supporting its claims or introducing certain designated matters in evidence in accordance with Rule 37(b) (2) (B). The court also made a finding of civil contempt against Cromaglass and its attorney Pattison and assessed against them as reasonable expenses and counsel fee the sum of $4,000.

Judge Muir filed his opinion, 344 F.Supp. 924, on June 27, 1972, and the order referred to is as follows:

“United States District Court For the Middle District of Pennsylvania
Cromaglass Corporation, Plaintiff ~j vs. I Civil Action
Carl Perm, Fred R. Sechler and | ^°’ 71-2^ Plast-A-Form Corporation, Defendants J
Order Imposing Sanctions
In accordance with the Opinion filed this day, It is Ordered and Adjudged that:
1. The Defendants’ amended motion for imposition of sanctions on Plaintiff for failure to answer Interrogatories 20, 21, 24 and 25 as directed by the court’s order of March 22, 1972, is granted.
2. The following facts shall be taken to be established for the purposes of this action in accordance with the claims of the Defendants.
2.1 Carl Ferm acquired no confidential or specialized knowledge or information respecting the fabrication or sale of aerobic sewage treatment equipment while in the employ of The Cromar Company, Plaintiff’s predecessor.
2.2 There is no confidential or specialized knowledge or information of the Plaintiff involved in the fabrication of Defendants’ aerobic sewage treatment equipment.
2.3 There is no confidential ór specialized knowledge or information involved in the sale of Defendants’ aerobic sewage treatment equipment to which Plaintiff has any right.
3. The Plaintiff shall not introduce into evidence anything relating to matters contained in Sub-Paragraph (8) of Count IV of the Complaint except that Plast-A-Form Corporation initiated the manufacture and sale of aerobic sewage treatments units subsequent to April 19, 1969.
4. The Plaintiff and its patent attorney, William H. Pattison, Jr., are in civil contempt of the lawful order of this court dated March 22, 1972, by reason of Plaintiff’s refusal to answer interrogatories 20, 21, 24, and 25 propounded to Plaintiff on June 4, 1971. This order shall not bar a finding of criminal contempt as to the same persons and Allan N. Young, Jr., President of Plaintiff, with respect to the same interrogatories.
5. The Plaintiff and the patent attorney, William H. Pattison, Jr., who advised it shall jointly and severally pay to the Defendants as reasonable expenses, including counsel fees, the sum of $4,000.00 within thirty days hereof, said expenses having been caused by the unjustified failure of Plaintiff to answer interrogatories 20, 21, 24, and 25 as required by the above order of March 22, 1972. There are no circumstances making the award unjust.
6. The Plaintiff is and has been since March 29, 1972 in default with respect to Paragraph 4 of the order of March 22, 1972, requiring submission of a proposal concerning inspection and photographing of parts of Plaintiffs’ premises located in the Wil-liamsport, Pa. area. Unless the default is cured within ten days from the date of this order, Defendants may move for additional sanctions.
MUIR, United States District Judge DATED: June 27, 1972.”

An appeal in toto was taken from this order by the plaintiff Cromaglass and this constitutes the subject matter of what is presently before us. No appeal was taken by Cromaglass’ counsel, William H. Pattison, Jr., Esquire.

A motion to dismiss the appeal was filed by the appellees, as follows: “Ap-pellees, by their attorneys, hereby move the Court for an order dismissing the appeal filed herein by Appellant from the order of June 27, 1972 of the U.S. District Court for the Middle District of Pennsylvania in Civil Action No. 71-23, on the ground that such order is a non-appealable interlocutory order.”

On November 16, 1972, another panel of this court had before it this motion to dismiss the appeal on the ground that the order appealed from was a nonap-pealable interlocutory order. This motion was denied. There was also a motion before that panel for a stay of appellate proceedings pending disposition of appellees’ motion to dismiss which also was denied, and the defendant was granted ten days to serve its brief and appendix. On November 24, 1972, an order was entered by that same panel referring the appellees’ motion to strike certain portions of appellant’s appendix to the panel which would consider the appeal on the merits.

It is apparent that if the appeal is dismissed, it is unnecessary to consider the motion to strike certain portions of appellant’s appendix.

Judge Muir denoted his order as one imposing sanctions in civil contempt. The parties apparently agree that the contempt order here appealed from sounds in civil contempt, and with this conclusion we have no dispute. See Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966).

The appellate courts will look to the substance of the order rather than the form. See, e. g., Southern Railway Co. v. Lanham, 403 F.2d 119 (5 Cir. 1968). The distinction is whether the penalty compensates the injured party (civil) or whether it is solely punitive to vindicate the public justice (criminal). Civil contempt is wholly remedial. See Fireman’s Fund Ins. Co. v. Myers, 439 F.2d 834, 837 (3 Cir. 1971). A judgment in civil contempt serves only the purpose of a party litigant, and is intended to coerce compliance with an order of the court or to compensate for damage caused by noncompliance as here.

The previous panel denied the motion to dismiss the appeal in its totality. We had believed it to be well settled both in this circuit and other circuits that, at least with respect to a party to the litigation, an order holding a party in civil contempt was in fact an interlocutory order and was not appealable except on final judgment. This we thought was made clear by such cases as Fireman’s Fund Ins. Co. v. Myers, 439 F.2d 834 (3 Cir. 1971); Securities and Exchange Commission v. Naftalin, 460 F.2d 471, 475 (8 Cir. 1972). Appellants’ attorney is not a party to the litigation but on the other hand he has not appealed. See Southern Railway Co. v. Lanham, 403 F.2d 119, 124 (5 Cir. 1968); Fenton v. Walling, 139 F.2d 608 (9 Cir.), cert. denied, 321 U.S. 798, 64 S.Ct. 938, 88 L.Ed. 1086 (1943).

It is interesting to note that the ap-pellees in their brief supporting their motion to dismiss have made no specific reference whatsoever to the lack of ap-pealability of a civil contempt order.

Paragraphs 2 and 3 of Judge Muir’s order, based upon Rule 37(b)(2)(A) and (B), Fed.R.Civ.P., present an issue as to appealability which is not as easily determinable as that portion of the order which deals with civil contempt. Its disposition requires the discussion set out hereinafter. It is clear that these sanctions do not represent a “final order,” appealable as of right under 28 U.S.C. § 1291. suming the order to be “final” with respect to the claims involved, see Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed.2d 1297 (1956), it adjudicates fewer than all the claims raised in the complaint. Hence, absent a Rule 54(b) certification by the district court, the general “finality” prerequisite of this statute has not been met, unless the order is deemed to fall within one of the exceptions to this rule. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Forgay v. Conrad, 47 U.S. (6 How.) 201, 12 L.Ed. 404 (1848). The sanctions imposed represent neither a collateral matter which could not be reviewed on final judgment nor a judgment which is final except for ministerial acts; therefore, an appeal will not lie under 28 U.S.C. § 1291. See Eisen v. Carlisle, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); United States v. Estate of Pearce, 498 F.2d 847 (3 Cir. 1974); 9 J. Moore, Federal Practice ¶¶110.08-110.11 (2d ed. 1973). As-

Cromaglass asserts that 28 U.S. C. § 1292(a)(1) provides a basis of appeal, urging that the imposed sanctions effectively eliminated its requests for both preliminary and permanent injunctive relief on a significant portion of the unfair trade practice claim.

Of the numerous claims for relief, the Rule 37(b) (2) (A) • and (B) sanctions were directed solely to Count IV(8). The claim alleged that Plast-A-Form Corporation utilized confidential information, acquired by Carl Ferm while in the employ of the appellant’s predecessor, in the manufacture and sale of aerobic sewage treatment equipment. The corresponding request for relief sought preliminary and permanent injunctive relief against the appellees for such continued unfair competitive practices.

In determining whether an order is appealable as of right under 28 U.S.C. § 1292(a)(1), a practical view of the consequences of permitting appeal must be taken with due regard to the purposes of the statute, the effect on the rights of the parties and the inconvenience of piecemeal review. Cf. Eisen v. Carlisle, supra. Several Second Circuit decisions are illustrative of the analysis.

In Western Geophysical Co. of America v. Bolt Associates, Inc., 440 F.2d 765 (2 Cir. 1971), the plaintiff moved for judgment on the pleadings and for summary judgment in respect to certain antitrust defenses based on the Sherman Act and the Clayton Act. The court denied the motion in respect to the Sherman Act defenses and counterclaim but granted it in respect to the Clayton Act claim. After this occurrence, the district court reiterated its earlier rulings in respect to the amended complaint and answer and ordered a separate trial on a newly pleaded sixth counterclaim. The appeal followed and on a motion to dismiss the appeal, Judge Friendly, speaking for the court, held in effect that where the second and sixth counterclaims were only two of the four counterclaims which sought injunctive relief and where Section 7 of the Clayton Act was only one of several alleged bases for relief asserted in the counterclaims and where the injunctive relief sought was almost identical except for a slightly broader prayer in the sixth counterclaim which was based upon alleged violations of the Sherman Act as well as the Clayton Act, the order of the trial court dismissing so much of the counterclaim as rested on the Clayton Act was not ap-pealable since no single counterclaim had been dismissed in its entirety and the li-censor, Bolt, could still obtain the full extent of the injunctive relief sought in the respective claims. Judge Friendly said at 769-771: “We turn next to Bolt’s contention that so much of the order as struck the portions of the second and sixth counterclaims grounded upon § 7 of the Clayton Act was appealable as an interlocutory order refusing an injunction within 28 U.S.C. § 1292(a)(1), a section whose history is traced in Stewart-Warner Corp. v. Westinghouse Electric Corp., 325 F.2d 822, 829-830 (2 Cir. 1963) (dissenting opinion), cert. denied sub nom. Stewart-Warner Corp. v. Canadian Westinghouse Co., 376 U.S. 944, 84 S.Ct. 800, 11 L.Ed.2d 767 (1964). If the issue had not previously arisen, something could be said for the proposition that when a complaint and answer present several claims, an order dismissing one of them which seeks an injunction, either on the merits or for lack of jurisdiction or improper venue, is not interlocutory but rather final with respect to that claim and is subject to appeal only if the district court properly certifies its action as a final judgment under F.R.Civ.P. 54(b). However, there are weighty arguments on the other side, and the division among the courts was settled in favor of appealability as from an interlocutory order refusing an injunction, prior to adoption of the Rules of Civil Procedure, in General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430, 53 S.Ct. 202, 77 L.Ed. 408 (1932). We applied that principle, after adoption of the rules, in Cutting Room Appliances Corp. v. Empire Cutting Machine Co., 186 F.2d 997 (2 Cir. 1951), in Telechron, Inc. v. Parissi, 197 F.2d 757 (2 Cir. 1952), and, in the writer’s view improperly, in Stewart-Warner Corp. v. Westinghouse Electric Corp., supra, 325 F.2d 822. Hence, if Bolt had asserted only one counterclaim seeking injunctive relief and this had been based solely on § 7 of the Clayton Act, an order striking the counterclaim for failing to state a claim on which relief could be granted or rendering summary judgment against Bolt would have been appealable under 28 U.S.C. § 1292(a)(1).

“Bolt’s difficulty is that its appeal does not mirror the hypothetical just stated. The second and sixth counterclaims were only two of four which sought injunctive relief under the antitrust laws, and § 7 of the Clayton Act was only one of several bases for relief asserted in these two counterclaims. The prayers for injunctive relief in counterclaims Two, Three, and Four are virtually identical. Although the Sixth counterclaim’s injunctive prayer is somewhat broader than that stated in the others, it — like the Second counterclaim —rests upon alleged violations of the Sherman Act as well as of Clayton Act § 7. Hence, the decision of a divided court in Glenmore v. Ahern, 276 F.2d 525, 545 (2 Cir.), cert. denied sub nom. Tri-Continental Financial Corp. v. Glenmore, 362 U.S. 964, 80 S.Ct. 877, 4 L.Ed.2d 878 (1960), does not mandate appellate jurisdiction here. In Glenmore, the district court had granted defendant’s motion to dismiss the sixth count of a multi-count complaint. The dismissed count had sought the same injunctive relief as several other counts but on ‘a distinct legal theory,’ indeed, a distinct claim— failure to obtain I.C.C. authorization for significant changes in the rights and privileges of the holders of railroad preferred stock as required by § 20(a) of the Interstate Commerce Act, cf. Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133 F.2d 187, 189 (2 Cir. 1943). Although other counts seeking an injunction on non-statutory grounds remained undetermined, we held the dismissal of the sixth count to be appealable under § 1292(a)(1). Here, by contrast, no single counterclaim on Bolt’s has been dismissed in its entirety. Bolt may still secure the full extent of injunctive relief prayed for in each claim that it has stated. Cf. Cott Beverage Corp. v. Canada Dry Ginger Ale, Inc., 243 F.2d 795 (2 Cir. 1957); Backus Plywood Corp. v. Commercial Decal, Inc., 317 F.2d 339, 341 (2 Cir.), cert. denied, 375 U.S. 879, 84 S.Ct. 146, 11 L.Ed.2d 110 (1963); Rabekoff v. Lazere & Co., 323 F.2d 865 (2 Cir. 1963); McNellis v. Merchants Nat. Bank & Trust Co., 385 F.2d 916 (2 Cir. 1967), all dealing with the related problem under F.R.Civ.P. 54(b). Under these circumstances, we cannot see that the judge’s striking the references to § 7 of the Clayton Act differed essentially from the exclusion of evidence or refusal to hear arguments relating solely to violation of that section.”

To abbreviate and perhaps over simplify the ruling in Western Geophysical, the court held in substance that the in-junctive relief could be granted on pleadings which were not dismissed by the trial court; that therefore the motion to dismiss the appeal should be granted. This was done. Since equivalent injunctive relief remained available the court deemed this to be sufficient and granted the motion to dismiss the appeal. The contents of the opinion inspire the belief that if other pleadings had not offered a basis for the relief sought the court of appeals would have refused to dismiss the appeal.

The most pertinent recent decision of the Court of Appeals for the Second Circuit cited and relied on by Cromaglass is Abercrombie & Fitch Co. v. Hunting World, Inc., 461 F.2d 1040 (2 Cir. 1972). In this case the cause of action was based upon infringement of Abercrom-bie’s trademark “Safari” by Hunting World. Hunting World moved for summary judgment under Rule 56(b), Fed. R.Civ.P., on the ground that it had not infringed the trademark. The district court granted partial summary judgment, denying a Rule 54(b) certification. The appeal to the Second Circuit Court was on the basis of § 1292(a)(1), which reads in pertinent part as follows: “(a) The courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States * * * granting, continuing, modifying, refusing or dissolving injunctions * * Judge Timbers stated: “If the relief sought below by plaintiff had been cast in the form of a claim for preliminary injunction, rather than for summary judgment, then I take it that the court’s interlocutory order refusing such injunction quite clearly would be appealable under § 1292(a)(1). That being so, it seems to me that the order here under review which finally dismissed certain of plaintiff’s claims for injunctive relief with respect to the alleged infringement of plaintiff’s trademark rights a fortiori is appealable under § 1292(a)(1). Although other claims for injunctive relief are still pending, the dismissed claims sought relief on a legal theory distinct from the retained claims. I find the instant case to be indistinguishable from Glenmore v. Ahern, 276 F.2d 525, 545 (2 Cir.), cert. denied sub nom. Tri-Continental Financial Corp. v. Glenmore, 362 U.S. 964, 80 S.Ct. 877, 4 L.Ed.2d 878 (1960), where our Court held appealable under § 1292(a)(1) an order of a district court which had dismissed one count of a multi-count complaint, the dismissed count having sought the same injunctive relief as several other counts but on a distinct legal theory. 276 F.2d at 545-547.” The statement by Judge Timbers seems to sum up briefly and adequately the rationale of the Second Circuit decisions.

The reasoning of earlier decisions of this court need not be elaborated at length here but can be summed up adequately, we think, on the basis of Cohen v. Beneficial Loan Corp., supra, 337 U.S. at 545, 69 S.Ct. at 1225, where Mr. Justice Jackson stated that Section 1292 indicates “ * * * the purpose to allow appeals from orders other than final judgments when they have a final and irreparable effect on the rights of the parties.” See also the authorities cited in the 12th paragraph of Judge Hastie’s opinion in Morgenstern Chemical Co. v. Schering Corp., 181 F.2d 160 (3 Cir. 1950). It is interesting to note that there was no denial of an injunction here. No order has been made directly denying preliminary or permanent injunctive relief. Cromaglass could have insisted on a Rule 65 hearing and had the trial judge refused such a hearing, mandamus would lie. If the Rule 65 hearing resulted in a denial of an injunction, Cromaglass indeed would have an appealable order. We should not broaden the scope of review of the decisions of the district court.

We believe the law to be correctly stated by the following two authorities: 4 J. Moore, Federal Practice ¶ 26.83 [7], at 26-601 (2d ed. 1972), states “Other orders [made pursuant to the Discovery Rules] however, are clearly interlocutory, and not final or appealable, such as an order that a particular matter be taken as established [Rule 37(b)(2)(A)] or refusing to allow a party to support or oppose designated claims or defenses or prohibiting him from introducing certain evidence [Rule 37(b)(2)(B)] or striking pleadings or staying proceedings [Rule 37(b)(2) (C)].” (Citing Hartley Pen Co. v. United States District Court, 287 F.2d 324 (9 Cir. 1961).)

14 Bender’s Forms of Discovery § 9.12 at 58 (1968), states: “Directly contrasted with order dismissing an action or directing the entry of a default judgment, some sanction orders are clearly interlocutory and are thus neither ‘final’ nor appealable. These are orders that particular matter be taken as established (pursuant to Rule 37(b)(2)(i)); denying a party the right to support or oppose specified claims or defenses or prohibiting the introduction of certain evidence (pursuant to Rule 37(b) (2) (ii)), or striking out pleadings or staying proceedings (pursuant to Rule 37(b)(2) (iii)).” See also cases cited in the text. Cf. Wright & Miller, Federal Practice and Procedure, Section 2962, “Appeals — Injunctive Relief.”

Our position is somewhat analogous to that taken by the Supreme Court in Switzerland Cheese Ass’n., Inc. v. E. Horne’s Market, Inc., 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966). That decision resolved a conflict between the circuits as to the appealability, under 28 U.S.C. § 1292(a)(1), of a denial of a motion for summary judgment requesting injunctive relief. The Second Circuit deemed it appealable in Federal Glass Co. v. Loshin, 217 F.2d 936 (1954), opinion by Judge Learned Hand, concurring opinion by Judge Frank, and dissenting opinion by Judge Clark. Judge Learned Hand decided in substance, after discussing inter alia our decision in Morgenstern Chemical Co. v. Schering, 181 F.2d 161 (1950), that when the district court had entered an order denying a motion of the plaintiff for summary judgment the order was appealable on the ground that injunctive relief was thereby ultimately denied. Judge Frank took a somewhat similar view, stating, however, 217 F.2d at 938: “A contrary conclusion, by sheer ritualism, would waste time. For plaintiff, the next minute after the denial of the summary judgment motion, could present the same papers unchanged except for a new label, ‘Motion for a preliminary injunction.’ For that reason, I disagree with Morgenstern Chemical Co. v. Schering Corp., 3 Cir., 181 F.2d 160, where the court said at page 162: ‘Nothing has occurred in or as a result of the denial of the motion [for summary judgment] which precludes plaintiff from seeking a temporary injunction in accordance with established procedure if he believes immediate injunctive relief is necessary and proper.’ ”

Responding to this position in Horne’s Market Mr. Justice Douglas stated: “Unlike some state procedures, federal law expresses the policy against piecemeal appeals. See Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233. Hence we approach this statute somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders. It is earnestly argued, however, that,' although this order denied a permanent injunction, it was nonetheless ‘interlocu- • tory’ within the meaning of § 1282(a)(1) because the motion for summary judgment did service for a motion for a preliminary injunction, and that therefore ‘interlocutory’ must also include a denial of a permanent injunction.

“We take the other view not because ‘interlocutory’ or preliminary may not at times embrace denials of permanent injunctions, but for the reason that the denial of a motion for summary judgment because of unresolved issues of fact does not settle or even tentatively decide anything about the merits of the claim.” But compare Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964).

We conclude the appeal must be dismissed.

SEITZ, Chief Judge

(dissenting).

I agree with the majority that a party may not appeal a civil contempt order under 28 U.S.C. § 1291 (1970). I cannot, however, accept the majority’s conclusion that the remainder of the order below is not appealable.

One count of plaintiff’s complaint alleges that Plast-A-Form has competed unfairly by utilizing specialized and confidential knowledge, acquired by Carl Ferm as an employee of plaintiff’s predecessor corporation, in the manufacture and sale of aerobic sewage treatment equipment. Plaintiff prayed for preliminary and permanent injunctive relief on the basis of this allegation. The district court ordered taken as established the facts that Ferm acquired no such specialized or confidential knowledge while employed by plaintiff’s predecessor and that Plast-A-Form used no such knowledge in its manufacture and sale of aerobic sewage treatment equipment. The court also prohibited plaintiff from introducing evidence to support its specialized knowledge count except to show that Plast-A-Form does manufacture and sell the sewage treatment equipment.

It seems clear to me that the district court order effectively decides the unfair-eompetition-from-Ferm’s specialized knowledge count against plaintiff. Under the strictures of the district court’s order, plaintiff clearly cannot obtain relief on this count of its complaint. Since the relief sought was injunctive, the order is one refusing an injunction. To hold as the majority does that no injunction had been denied does not represent a realistic analysis of what the district court’s order does to plaintiff’s request for injunctive relief. To put it another way, it exalts form over substance. I would not have a party’s right to appeal the denial of injunc-tive relief depend on the district court’s choice in the form of that denial.

The majority, however, finds support for its conclusion in Switzerland Cheese Association v. Horne’s Market, Inc., 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966). The district court there had denied a motion for summary judgment because it found disputed material issues of fact. As the Supreme Court noted, that order did not prevent the plaintiffs from obtaining injunctive relief, preliminary or permanent; the order decided “only one thing — that the case should go to trial.” Id. at 25, 87 S.Ct. 195. I see no relation between the Horne’s Market order and one, such as the order appealed from here, deciding that a party will not be allowed to prove matters necessary to obtain injunctive relief.

While the order undoubtedly forecloses plaintiff’s ability to secure the requested injunctive relief, there is a more difficult problem in determining whether the order below is appealable under 28 U.S.C. § 1292(a)(1) (1970) as an interlocutory order refusing an injunction: does the compláint’s inclusion of other claims for which injunctive relief is prayed destroy appealability here? The majority, which does not reach this matter, has quoted much of the decisional law relevant to this problem. The Second Circuit’s position, basically, is that where more than one count of a complaint seeks injunctive relief, a denial of injunctive relief on less than all such counts is not appealable under § 1292(a) (1) unless the struck counts seek different injunctive relief than those remaining or seek relief on a “distinct legal theory.” I believe this position properly harmonizes the policy against “piecemeal appeals” with the congressional desire to allow immediate review of interlocutory grants or refusals of in-junctive relief. Applying this analysis to the instant case, I would find the order appealable because plaintiff’s complaint seeks different injunctive relief under the specialized knowledge count than under other counts and does so on a distinct legal theory.

Because I would find the order appeal-able under § 1292(a) (1) insofar as it established certain facts and prohibited proof of others, I would also find that we might properly decide the contentions concerning the civil contempt. The order appealed from contains not only the sanctions effectively denying plaintiff injunctive relief but also the civil contempt sanctions. The two matters might have been disposed of in separate orders; I, therefore, would not find decision of both matters mandated when only one is interlocutorily appealable. Since, however, § 1292(a) grants jurisdiction of appeals from orders, not of appeals from decisions of specified questions, I would find that we are authorized to decide other questions presented in an order appealable under § 1292(a) when decision of those questions is appropriate to proper judicial administration. See McCreary Tire & Rubber Co. v. CEAT, S.p.A., 501 F.2d 1032 (3d Cir. 1974); cf. Johnson v. Alldredge, 488 F.2d 820, 822-823 (3d Cir. 1973). The imposition of civil contempt sanctions involves the same issues as the district court’s imposition of substantive sanctions, and where the latter action is appealable, decision of the propriety of both actions would promote efficient use of judicial resources.

Given the majority’s disposition of this appeal, I deem it inadvisable to express my views on the merits.

Judge ADAMS joins in this opinion.

      . It is noteworthy that under revised procedures of this Court, if the motion panel is of the view that a motion to dismiss an appeal be not granted, it is referred by order, without decision or without prejudice, to the panel which is to determine the appeal on the merits. Internal Operating Procedures of the United States Court of Appeals for the Third Circuit § Q5 (1974).

      . For another ease throwing some light on this difficult issue and the approach of the Second Circuit Court of Appeals see Stewart-Warner Corp. v. Westinghouse Electric Corp., 325 F.2d 822, 828 (1963), Judge Lumbard writing the majority opinion and Judge Friendly dissenting.

      . See also Drittel v. Friedman, 154 F.2d 653 (2 Cir. 1946); Betmar Hats v. Young America Hats, 116 F.2d 956 (2 Cir. 1941); In re Finkelstein, 102 F.2d 688 (2 Cir. 1939); Jones v. St. Paul Fire & Marine Ins. Co., 108 F.2d 123 (2 Cir. 1939); Knickerbocker Toy Co. v. Faultless Starch Co., 467 F.2d 501 (Cust. & Pat.App.1972).

      . See, e. g., Morgenstern Chemical Co. v. Schering Corp., 181 F.2d 160 (3 Cir. 1950); Albert v. School District of Pittsburgh, 181 F.2d 690 (3 Cir. 1950); American Airlines v. Forman, 204 F.2d 230 (3 Cir. 1953); Hook v. Hook & Ackerman, Inc., 213 F.2d 122 (3 Cir. 1954); District 65, Distributive, Processing and Office Workers Union of New York and New Jersey v. McKague, 216 F.2d 153 (3 Cir. 1954). See also, Hackett v. General Host Corp., 455 F.2d 618 (3 Cir.), cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812 (1972), wherein Judge Gibbons held that an order denying confirmation of an action as a class action was interlocutory and not appealable.

      . The parties obliquely address a related point that I think deserves at least oblique answer. Rule 54(b) of the Federal Rules of Civil Procedure allows appeal as a final judgment of any disposition of less than all claims if the district judge certifies his order as a final disposition of the affected claims. Although Rule 54(a) makes and rule applicable to all appealable orders and judgments, a literal interpretation of the rule would be inconsistent with § 1292— since a similar certification is required for certain interlocutory appeals (§ 1292(b)) but not for others (§ 1292(a)) authorized by the section, it seems clear the drafters of § 1292 chose not to require such certification as a prerequisite to appeals under § 1292(a). I would read Rule 54(b) as limited to appeals under § 1291. See C. Wright & A. Miller, Federal Practice and Procedure, Civil § 2962 (1973).

      . While the count involved here claimed unfair competition from Plast-A-Form’s use of Ferm’s specialized knowledge, the other counts claim patent infringement and false advertising. The complaint seeks, on the basis of the specialized knowledge count, in-junctive relief against Plast-A-Form’s use of Ferm’s knowledge to manufacture and sell sewage treatment equipment; other counts support claims for relief from Plast-A-Form’s use of certain designs for such equipment and their means of advertising the equipment, both different and more limited types of relief than sought under the foreclosed count.